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NOR THSARpLINA 

EGIsfER 




VOtUME14 



ISSUE 17 • Pages 1492 - 1592 





PUBLISHED BY 

The Office of Administrative Hearings 

Rules Division 

6714 Mail Service Center 

Raleigh, NC 27699-6714 

Telephone (919) 733-2678 

Fax (919) 733-3462 



This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13 



For those persons that have questions or concerns regarding the Administrative Procedure Act or any of its 
components, consult with the agencies below. The bolded headings are typical issues which the given 
agency can address, but are not inclusive. 



Rule Notices. Filings, Register. Deadlines. Copies of Proposed Rules, etc 

Office of Administrative Hearings 

Rules Division 

Capehart-Crocker House " 

424 North Blount Street 

Raleigh, North Carolina 27601-2817 



(919)733-2678 
(919) 733-3462 FAX 



contact: Molly Masich, Director APA Services 
A' Ruby Creech, Publications Coordinator 

iff *^ // 
Fiscal Notes & Economic Analysis 

// Office of State Budget and Management 
jl 16 West Jones Street 
fRaleigh, North Carolina 27603-8005 

contact: Warren Plonk, Economist III 



mmasich@oah.state.nc.us 
rcreech@oah.state.nc.us 



(919)733-7061 
(919) 733-0640 FAX 

wplonk@osbm.state 




II 



\ 



Rule Review and Legal Issues 

Rules Review Commission 

\l^> 1307 Glenwood Ave., Suite 159 

\\ Raleigh, North Carolina 27605 

i; contact: Joe DeLuca Jr., Staff Director Counsel 
Bobby Bryan, Staff Attorney 



(919)733-2721 
(919) 733-9415 FAX 



\V\\rt«»v \r 



•NH 



Legislative Process Concerning Rule-making 

Joint Legislative Administrative Procedure Oversight Committee 

545 Legislative Office Building 

300 North Salisbury Street (919) 733-2578 "^ 

Raleigh, North Carolina 276 11 (9 19) 7 1 5-5460 FAX 



contact: Mary Shuping, Staff Liaison 



marys@ms.ncga.state.nc.us >^ 




County and Municipality Government Questions or Notification 

NC Association of County Commissioners 

2 1 5 North Dawson Street (9 1 9) 7 1 5-2893 

Raleigh, North Carolina 27603 

contact: Jim Blackburn or Rebecca Troutman 



NC League of Municipalities 
215 North Dawson Street 
Raleigh, North Carolina 27603 

contact: Paula Thomas 



(919)715-4000 



This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11 .13 



NORTH CAROLINA 
REGISTER 




Volume 14, Issue 17 
Pages 1492 - 1592 



March 1, 2000 



This issue contains documents officially filed 
through February 9, 2000. 



Office of Administrative Hearings 

Rules Division 

424 North Blount Street (27601) 

6714 Mail Service Center 

Raleigh, NC 27699-6714 

(919)733-2678 

FAX (919) 733-3462 



Julian Mann 111, Director 

Camille Winston, Deputy Director 

Molly Masich, Director of APA Services 

Ruby Creech, Publications Coordinator 

Linda Dupree, Editonal Assistant 

Jessica Flowers, Editorial Assistant 

Dana Sholes, Editorial Assistant 



IN THIS ISSUE 

I. EXECUTIVE ORDERS 

Executive Order 167 1492 

II. IN ADDITION 
Licensing Boards 

Social Work Certification & Licensure Bd. . 1493 
Voting Rights Letters 1494 - 1495 

III. RULE-MAKING PROCEEDINGS 
Environment and Natural Resources 

Environmental Management 1496 - 1497 

Health and Human Services 

Child Care Commission 1496 

Public Education 

Elementary & Secondary Education 1497 

Secretary of State 

Securities Division 1497 - 1499 

IV. PROPOSED RULES 
Health and Human Services 

Medical Assistance 1500 - 1506 

Public Education 

Elementary & Secondary Education 1506 - 15 1 1 

V. TEMPORARY RULES 
Agriculture 

Hurricane Floyd Recovery Programs 1512-1513 

Commerce 

Departmental Rules 1513 - 1515 

Environment and Natural Resources 

Departmental Rules 1515 - 1520 

Wildlife Resources Commission 1520 - 1522 

Health and Human Services 

Health Services 1522 - 1523 

Licensing Boards 

Cosmetic Arts Examiners 1523 - 1524 

VL APPROVED RULES 1525 1566 

Commerce 

Cape Fear River Navigation & Pilotage Commission 
Environment and Natural Resources 

Coastal Resources Commission 

Departmental Rules 

Environmental Management 

Health Services 

Marine Fisheries Commission 
Health and Human Services 

Child Care Commission 

Facility Services 

Vocational Rehabilitation Services 
Independent Agencies 

Housing Finance Agency 
Licensing Boards 

Pharmacy, Board of 

VII. RULES REVIEW COMMISSION 1567-1576 

VIII. CONTESTED CASE DECISIONS 

Index to ALJ Decisions 1577 - 1585 

Text of Selected Decisions 

99EHR0770 1586-1592 

IX. CUMULATIVE INDEX 1-96 



Norlli Carolina Register is published senu-monthK for $ 195 per \ear by the Office of Administrative Hearings, 424 North Blount Street. Raleigh, NC 2760 1 . 
(ISSN 1 5200604) to mail at Penodicals Rates is paid at Raleigh, NC. POSTMASTER: Send Address changes to the Norlh Carolina Register, PO Drawer 
27447. Raleigh. NC 2761 1-7447, 



NORTH CAROLINA ADMINISTRA TIVE CODE CLASSIFICA TION SYSTEM 



The North Carolina Administrative Code (NCAC) has four major subdivisions of rules. Two of these, titles and chapters, 
are mandatory. The major subdivision of the NCAC is the title. Each major department in the North Carolina executive 
branch of government has been assigned a title number. Titles are further broken down into chapters which shall be 
numerical in order. The other two, subchapters and sections are optional subdivisions to be used by agencies when 
apyropriale . 



TITLE/MAJOR DIVISIONS OF THE NORTH CAROLINA ADMINISTRATIVE CODE 



TITLE 


DEPARTMENT 


LICENSING BOARDS 


CHAPTER 


1 


Administration 


Acupuncture 


1 


2 


Agriculture 


Architecture 


2 


3 


Auditor 


Athletic Trainer Examiners 


3 


4 


Commerce 


Auctioneers 


4 


5 


Correction 


Barber Examiners 


6 


6 


Council of State 


Certified Public Accountant Examiners 


8 


7 


Cultural Resources 


Chiropractic Examiners 


10 


8 


Elections 


Employee Assistance Professionals 


11 


9 


Governor 


General Contractors 


12 


10 


Health and Human Services 


Cosmetic Art Examiners 


14 


11 


Insurance 


Dental Examiners 


16 


12 


Justice 


Dietetics/Nutrition 


17 


13 


Labor 


Electrical Contractors 


18 


14A 


Crime Control & Public Safety 


Electrolysis 


19 


15A 


Environment and Natural Resources 


Foresters 


20 


16 


Public Education 


Geologists 


21 


17 


Revenue 


Hearing Ad Dealers and Fitters 


22 


18 


Secretary of State 


Landscape Architects 


26 


19A 


Transportation 


Landscape Contractors 


28 


20 


Treasurer 


Massage & Bodywork Therapy 


30 


*21 


Occupational Licensing Boards 


Marital and Family Therapy 


31 


22 


Administrative Procedures (Repealed) 


Medical Examiners 


32 


23 


Community Colleges 


Midwifery Joint Committee 


33 


24 


Independent Agencies 


Mortuary Science 


34 


25 


State Personnel 


Nursing 


36 


26 


Administrative Hearings 


Nursing Home Administrators 


37 


27 


NC State Bar 


Occupational Therapists 


38 






Opticians 


40 






Optometry 


42 






Osteopathic Examination & Reg (Repealed) 


44 






Pastoral Counselors, Fee-Based Practicing 


45 






Pharmacy 


46 






Physical Therapy Examiners 


48 






Plumbing, Heating & Fire Sprinkler Contractors 


50 






Podiatry Examiners 


52 






Professional Counselors 


53 






Psychology Board 


54 






Professional Engineers & Land Surveyors 


56 






Real Estate Appraisal Board 


57 






Real Estate Commission 


58 






Refrigeration Examiners 


60 






Sanitarian Examiners 


62 






Social Work Certification 


63 






Soil Scientists 


69 






Speech & Language Pathologists & Audiologists 


64 






Substance Abuse Professionals 


68 






Therapeutic Recreation Certification 


65 






Veterinary Medical Board 


66 



Note: Title 2 1 contains the chapters of the various occupational licensing boards. 






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ON 




EXECUTIVE ORDERS 



EXECUTIVE ORDER NO. 167 

EMERGENCY RELIEF FOR DAMAGE 

CAUSED BY JANUARY 2000 WINTER STORM 

WHEREAS, I have proclaimed that a state of emergency and 
disaster exists in North Carohna due to a winter storm; and 

WHEREAS,, the North Carolina Department of Transportation 
has declared a State emergency justifying an exemption from 49 
C.F.R. 390-397 (Federal Motor Carrier Safety Regulations); and 

WHEREAS, under the provisions of N.C.G.S. 1 66A-4(3) and 
166A-6(c)(3), the Governor, with the concurrence of the 
Council of State, may regulate and control the flow of vehicular 
traffic and the operation of transportation services; and 

WHEREAS, with the concurrence of the Council of State, I 
have found that if vehicles carrying salt to alle\'iate slippery 
conditions on ice-covered streets, roads and highways and 
equipment used to restore pubhc utilities must adhere to the 
registration requirements of N.C.G.S. 20-86. 1 and 20- 382, fiiel 
tax requirements of N.C.G.S. 105-449.47, and the size and 
weight requirements of N.C.G.S 20-1 16 and N C.G.S. 20-1 18, 
then streets, roads and highways will not be cleared of slippery 
conditions in an expeditious manner and this will result in an 
imminent threat of widespread damage within the meaning of 
N.C.G.S. 166-A-4(3); 

NOW, THEREFORE, pursuant to the authority vested in me 
as Governor by the Constitution and the laws of the State of 
North Carohna, and with the concurrence of the Council of 
State, IT IS ORDERED: 

Section h The Division of Motor Vehicles shall waive 
certain size and weight restrictions and penalties therefore 
arising under N.C.G.S. 20- 1 1 6 and N.C.G.S. 20- 11 8, and certain 
registration requirements and penalties therefore ansing under 
N.C.G.S. 20-86 1,20-382, 105-449 47, 105-449.49 for vehicles 
transporting salt, and equipment used to restore public utilities, 
along our streets, roads and highways to North Carolina's winter 
storm stricken counties. 



temporary trip permit is waived for the vehicles 
described above. No quarterly fiiel tax is required 
because the exception m N.C.G.S. 105-449.45(a)(I) 
applies. 

(B) The registration requirement under N.C.G S. 20-382 
concerning intrastate and interstate for-hire authority 
is waived; however, vehicles shall maintain the 
required limits of insurance. 

(C) Non-participants in North Carolina's International 
Registration Plan will be permitted into North 
Carolina in accordance with the spirit of the 
exemptions identified by this Executive Order. 

Section 4^ Thesizeandweight exemption for vehicles will 
be allowed on all routes designated by the North Carolina 
Department of Transportation. This order shaU not be in effect 
on bridges posted pursuant to N.C.G.S. 136-72. 

Section s. The waiver ofregulations under 49 C.F.R. 390- 
397 (Federal Motor Carrier Safety Regulations) does not apply 
to the CDL and Insurance Requirements This waiver shall be 
in effect for 30 days or for the duration of the emergency, 
whichever is less. 

Section 6. The North Carolina Department of 
Transportation shall enforce the conditions set forth in Sections 
1, 2, and 3 in a manner which will best accomplish the 
implementation of this rule without endangering motorists in 
North Carolina. 

Section T Upon request, exempted vehicles shall be 
required to produce identification sufficient to establish that its 
load consists of salt and equipment used to restore public 
utihties which will be used for emergency relief efforts 
associated with the January 2000 winter storm and the 
alleviation of slippery conditions along North Carolina streets, 
roads and highways. 

This Executive Order is effective immediately and shall 
remain in effect for thirty (30) days from the date provided 
below. 



Section Z Notwithstanding the waivers set forth above, 
size and weight restrictions and penalties have not been waived 
under the following conditions; 

( A) When the vehicle weight exceeds the maximum gross 
weight critena established by the manufacturer 
(GVWR) or 90,000 pounds gross weight, whichever 
is less. 

(B) When the tandem axle weight exceeds 42,000 pounds 
and the single axle weight exceeds 22,000 pounds. 

(C) When a vehicle/vehicle combination exceeds 12 feet 
in width and a total overall vehicle combination 
length of 75 feet from bumper to bumper. 



Done in the Capital City of Raleigh, North Carolina this 28th 
day of January, 2000. 



Section 3^ Vehicles referenced under section 1 shall be 
exempt from the following registration requirements 

(A) The $50.00 fee listed m N.C.G.S. 105-449 49 for a 



14:17 



NORTH CAROLINA REGISTER 



March 1, 2000 



1492 



INADDITION 



This Section contains public notices that are required to be published in the Register or have been approved by the Codifier 
of Rules for publication. 



CHAPTER 63 - SOCIAL WORK CERTIFICATION 

NOTICE OF PUBLIC HEARING 

The North Carolina Social Work Certification and Licensure Board ("Board") will hold an additional public hearing to take 
comment on proposed permanent rules. The Board published a Notice of Text in Volimie 14, Issue 14 of the North Carolina Register 
indicating its intent to adopt, amend and repeal rules located at Title 2 1 , Chapter 63 of the North Carolina Administrative Cocfe. That 
Notice of Text included notice of a public hearing which was held on February 7, 2000. It also included notice that the comment 
period mandated by G.S. 1 50B-2 1 .2(f) would run through February 14, 2000. The Board will hold an additional public hearing on 
March 16, 2000. The hearing will begin at 9:00 a.m., and will be held in Room G-22 of the OldEducation Building, 1 14 W. Edenton 
St., Raleigh, North Carolina. Pursuant to G.S. 150B-2 1.2(f) the Board will hold open the comment period through March 16, 2000. 
Questions regarding the public hearing and any written comments on the proposed rules should be directed to Grady L. Balentine, 
Jr., Assistant Attorney General, N.C. Dept. of Justice, P.O. Box 629, Raleigh, NC 27602-0629, telephone (919)71 6-6840. The Board 
will consider the proposed rules at a meeting on March 17, 2000, by conference telephone. Anyone wishing to listen to the March 
17, 2000 meeting should contact the Board Office at (336) 625-1679. 



1493 NORTH CAROLINA REGISTER March 1,2000 14:17 



IN ADDITION 



U.S. Department of Justice 
Civil Rights Division 



JDR:DHH:DCM:par Voting Section 

DJ 1 66-0 1 2-3 PO. Box 66128 

1999-1978 Washington, D.C. 20035-6128 

1999-2745 



January 14, 2000 

Robert E. Homik, Jr., Esq. 

The Brough Law Firm 

1829 East Franklin St., Suite 800- A 

Chapel HiU,NC 275 14 

Dear Mr. Homik: 

This refers to the June 1, 1969, March 9, 1970, April 26, 1971, annexations, 14 other annexations (Ordinance Nos. 72-1 1, 
76-8, 79-5, 79-13, 79-35, 80-37, 80-38, 80-46, 82-14, 82-3 1 , 85-47, 90-16, 99-9,and 99-10), and the designation of the annexed areas 
to wards of the Town of Tarboro in Edgecombe County, North Carolina, submitted to the Attorney General pursuant to Section 5 
of the Voting Rights Act, 42 U.S.C. 1973c. We received your submissions on December 15, 1999. 

The Attorney General does not interpose any objection ot the specified changes. However, we note that Section 5 expressly 
provides that the failure of the Attorney General to object does not bar subsequent litigation to enjoin the enforcement of the changes. 
In addition, as authorized by Section 5, we reserve the right to reexamine these submissions if additional information that woJd 
otherwise require an objection comes to out attention during the remainder of the sixty-day review period. See the Proceduresfor 
the Administt^tion of Section 5 (28 C.F.R. 51.41 and 51.43). 

Sincerely, 



Joseph D. Rich 

Acting Chief, Voting Section 



14:17 NORTH CAROLINA REGISTER March 1,2000 1494 



INADDITION 



U.S. Department of Justice 
Civil Rights Division 



JDR:DHH:SMC;bab 
DJ 166-012-3 
1999-3686 
1999-3834 



Voting Section 

P.O. Box 66128 

Washington, D.C. 20035-6128 



January 14, 2000 



David A. Holec, Esq. 
City Attorney 
P.O. Box 7207 
Greenville, NC 27835 

Dear Mr. Holec: 

This refers to 1 3 annexations (Ordinance Nos. 95 through 103 and 129 through 132 (1999)) and their designation to districts 
of the City of Greenville in Pitt County, North Carolina, submitted to the Attorney General pursuant to Section 5 of the Voting Rights 
Act, 42 U.S.C. 1973c. We received your submissions on November 29 and December 16, 1999. 

The Attorney General does not interpose any objection to the specified changes. However, we note that Section 5 expressly 
provides that the failure of the Attorney General to object does not bar subsequent litigation to enjoin the enforcement ofthe changes. 
In addition, as authorized by Section 5, we reserve the right to reexamine these submissions if additional information that would 
otherwise require an objection comes to our attention during the remainder ofthe sixty-day review period. See the Proceduresfor 
the Administration of Section 5 (28 C.F.R. 51.41 and 51.43). 



Sincerely, 



Joseph D. Rich 

Acting Chief, Voting Section 



1495 



NORTH CAROLINA REGISTER 



March 1, 2000 



14:17 



RULE-MAKING PROCEEDINGS 



A Notice of Rule-making Proceedings is a statement of subject matter of the agency's proposednile making The agency must 
publish a notice of the subject matter for public comment at least 60 days prior to publishing the proposed text of a rule. 
Publication of a temporary rule serves as a Notice of Rule -making Proceedings and can be found in ihe Register under the 
section heading of Temporary Rules. A Rule-making Agenda published by an agency sen'es as Rule-making Proceedings and 
can be found in the Register under the section heading of Rule-making Agendas. Statutory reference: G.S. 150B-21.2. 



TITLE 10 - DEPARTMENT OF HEALTH AND HUMAN 
SERVICES 

CHAPTER 3 - FACILITY SERVICES 

^ Jotice of Rule-making Proceedings is hereby given by the 
1\ NC Child Care Commission in accordance Mith G.S. 
150B-21.2. The agency shall subsequently publish in the 
Resister the text of the rule(s) it proposes to adopt as a result of 
this notice of rule-making proceedings and any comments 
received on this notice. 

Citation to Existing Rules Affected by this Rule-Making: 

lONCAC 3U .0300, .0600. .0800. .1300, .1600-.2200 - Other 
rules may be proposed in the course of the rule-making process. 

Authority for the rule-making: G.S. 143B-168.3. 

Statement of the Subject Matter: Child care rules regarding 
the health and safety of children in child care centers and 
homes. 

Reason for Proposed Action: The Child Care Commission 
proposes rulemaking to review requirements pertaining to the 
health and safety of children in child care centers and family 
child care homes. The Commission will also review rules that 
may need updated terminology or references. 

Comment Procedures: Questions or written comments 
regarding this matter may be directed to Janice Fain, APA 
Coordinator, Division of Child Development. 2201 Mail Service 
Center. Raleigh, NC 27699-2201, (919)662-4543. 



TITLE 15A - DEPARTMENT OF ENVIRONMENT AND 
NATURAL RESOURCES 



215.3(a)(1); St. 1999, c. 329. 

Statement of the Subject Matter: The proposed rule will set 
forth the procedures and requirements for collection system 
owners to meet the requirements of S.L. 1999, c. 329. The 
proposed rule will also define collection system since this term 
is not defined in the statutes. The following test is the proposed 
rule test which the Environmental Management Commission 
plans to adopt. 

Reason for Proposed Action: On July 20. 1999 the N. C. 
General Assembly ratified House Bill 1160. Section 11.2. of 
Part .XI, entitled "Environmental Management Commission to 
Develop Engineering Standards and Implement a Permit 
Programfor Municipal and Domestic Wastewater Collections, " 
states, "The Environmental Management Commission shall 
develop and implement a permit program for municipal and 
domestic wastewater collection systems on a systemwide 
basis. ..the Commission shall implement the permit program over 
afive-year period beginning 1 July 2000." The term "collection 
system " is not defined in the State 's statutes or administrative 
code. 

A rule which addresses the scope and requirements of the new 
permitting program must be added to 15A NCAC 2H .0200 - 
"Waste Not Discharged to Surface Waters. " March 1, 2000 has 
been selected as the proposed effective date of the temporary 
rule so that applications may be distributed, completed, and 
returned prior to the initiation of permitting on July 1, 2000. 
This Rule will define collection system and address the scope 
and requirements of the new permitting program. The 
temporary rule is intended to become permanent. However, 
time does not permit the adoption of a permanent rule prior to 
the mandated implementation date. The Environmental 
Management Commission will approve the rule and grant staff 
the authority to proceed with temporary and permanent rule 
making procedures for publication in the NC Register. 



CHAPTER 2 - ENVIRONMENTAL MANAGEMENT 

TV Jotice of Rule-making Proceedings is hereby given hy the 
1 V DENR,' Environmental Management Commission in 
accordance with G.S. 150B-21.2 The agency shall 
subsequently publish in the Register the text of the rule(s) it 
proposes to adopt as a result of this notice of rule-making 
proceedings and any comments received on this notice. 

Citation to Existing Rules Affected by this Rule-Making: 

15A NCAC 2H .0227 - Other rules may be proposed in the 
course of the rule-making process. 



Comment Procedures: Written comments may be submitted to 
Kim H. Colson, Division of Water Quality, Water Quality 
Section, Non-Discharge Permitting Unii. 1617 Mail Sen'ice 
Center, Raleigh. NC 27699-1617. An information package may 
be obtained hy contacting the Non-Discharge Permitting Unit 
at (919)733-5083 (EXT. 574 OR 524). 

SUBCHAPTER 2H - PROCEDURES FOR 
PERMITS: APPROVALS 

SECTION .0200 - WASTE NOT DISCHARGED 
TO SURFACE WATERS 



Authority for the rule-making: G.S 143-215.1; 143- 0227 SYSTEM-WIDE COLLECTION SYSTEM 



14:17 



NORTH CAROLINA REGISTER 



March 1, 2000 



1496 



RULE-MAKING PROCEEDINGS 



PERMITTING 

(a) In accordance with the North Carolina Clean Water Act 
of 1999. S, L 1999 a 329, s, 11.2. the Director may issue 
system-wide permits for collection systems. 

(b) The following definitions apply to this Section: 

(1) "Collection system" means a group of contiguous 
sewer systems that convey municipal or domestic 
wastewater to a wastewater treatment facility or 
separately-owned sewer system. 

(2) "High-priority sewer line" means any aerial line, sub- 
waterway crossing, line contacting surface waters, 
siphon. Une positioned parallel to streambanks that 
are subject to eroding in such a manner that may 
threaten the sewer line, or line designated as high 
priority in a permit. 

(c) Permit apphcations for the initial issuance of a collection 
system permit shall be completed and submitted to the Division 
within 60 days of the collection system owner's receipt of the 
Division's request for application submittal. The Division shall 
request the initial application submittal by certified mail. Permit 
renewal requests shall be submitted to the Director at least 1 80 
days prior to expiration, unless the permit has been revoked in 
accordance with Rule .0213 of this Section. All applications 
must be submitted in triplicate and made on official forms 
completely filled out, where applicable, and fully executed. 

(d) Collection systems that have a design flow and convey an 
actual flow less than 200.000 gallons per day shall be deemed to 
be permitted pursuant to G.S. 143-2 1 5. l(b)(4)e. and it shall not 
be necessary for the Division to issue individual permits for the 
operation and maintenance of the these systems and their 
associated management programs provided that the following 
criteria are met: 

(1) The sewer system is effectively maintained and 
operated at all times to prevent discharge to land or 
surface waters, and any contravention of the 
groundwater standards in 1 5 A NC AC 2L .0200 or the 
surface water standards in 15A NCAC 2B .0200; 

(2) A map of the sewer system has been developed prior 
to January 1. 2004 and is actively maintained; 

£3} An operation and maintenance plan has been 
developed and implemented; 

(4) Pump stations that are not connected to a telemetry 
system are inspected at least three times per week 
until July L, 2000; thereafter, pump stations are 
inspected at least daily, as defined in 15A NCAC 2B 
.0503(5). until July L 2001; and thereafter, pump 
stations are inspected every day. Pump stations that 
are connected to a telemetry system are inspected at 
least once per week; 

(5) High-priority sewer lines are inspected at least once 
per every six-month period of time; 

(6) A general observation of the entire sewer system is 
conducted at least once per year; 

(7) Inspection and maintenance records are maintained 
for a period of at least three years; and 

(8) Overflows and bypasses are reported to the 
appropriate Division regional office in accordance 
with 15 A NCAC 2B .0506(a). and public notice is 



provided as required by G.S. 143-2 15. IC. 
£e) The Director may, on a case by case basis, determine that 
a collection system should not be deemed to be permitted in 
accordance with this Rule and require the owner of the 
collection system to obtain an individual collection system 
permit from the Division if 

(1) The owner of the collection system does not maintain 
compliance with the requirements of Paragraph (d) of 
this Rule; or 
("2") The collection system is determined to be 
contributing to the impairment of surface waters 
specified on the Division's list generated as a result of 
the Federal Water Pollution Control Act (Clean Water 
Act) Section 303(d). 33 U.S.C. Section 1313(dy 

Authority G.S. 143-215. 1(a); 1 4 3-2 15.3 (a), (d); North Carolina 
Clean Water Act of 1999, S.L 1999 c. 329. 



TITLE 16 - DEPARTMENT OF PUBLIC EDUCATION 

CHAPTER 6 - ELEMENTARY AND SECONDARY 
EDUCATION 

A Totice of Rule-making Proceedings is hereby given by the 
ly State Board of Education in accordance with G.S. 
150B-21.2. The agency shall subsequently publish in the 
Resister the text of the rule(s) it proposes to adopt as a result of 
this notice of rule-making proceedings and any comments 
received on this notice. 

Citation to Existing Rules Affected by this Rule-Making: 

1 6 NCAC 6C. 0401, .0404, .0501 -Other rules may be proposed 
in the course of the rule-making process. 

Authority for the rule-making: G.S 115-12(8), 115-272, 115 
-285, 115-302.1, 115-316, 115-333, 115-408 

Statement of the Subject Matter: Local school employee 
leave provisions and evaluation. 

Reason for Proposed Action: These rule-making proceedings 
were initiated by the State Board of Education to make 
clarifying amendments to school personnel leave policies and 
to update the employee evaluation process. 

Comment Procedures: Written comments may be submitted to 
Harry E. Wilson, State Board of Education, 301 N. Wilmington 
St., Raleigh, NC 27601-2625. 



TITLE 18 - DEPARTMENT OF SECRETARY OF 
STATE 

CHAPTER 6 - SECURITIES DIVISION 



1497 



NORTH CAROLINA REGISTER 



March 1, 2000 



14:17 



RULE-MAKING PROCEEDINGS 



Notice of Rule-making Proceedings is hereby given by the NC 
Department of the Secretary of State in accordance with G.S. 
150B-21.2. The agency shall subsequently publish in the 
Register the text of the rule(s) it proposes to adopt as a result of 
this notice of rule-making proceedings and any comments 
received on this notice. 

Citation to Existing Rules Affected by this Rule-Making: 18 

NCAC 6 . 1402, . 1413, . 1 709 Other rules may be proposed in 
the course of the rule-making process. 

Authority for the rule-making: G.S. 78A-37(a); 78A-39; 78A- 
(b)(4); 78A-49(a); 78C-19(b); 78C-30(a); 78-30(b). 

Statement of the Subject Matter: These amendments relate to 
the examinations required of applicants for registration as 
investment advisors, investment advisor representatives, and 
securities salesmen. They are intended to implement a uniform 
and coordinated policy by state securities regulators developed 
and promoted by the North American Securities Administrators 
Association(NASAA). 

Reason for Proposed Action: As of January 1, 2000, NASAA 
implemented a revised Uniform Investment Advisor State Law 
Examination (known as a Series 65 Exam) and retired the Series 
65 Exam contemplated by 18 NCAC 6 .1709 that was in use 
prior to that date. Additionally, as of January 1, 2000, NASAA 
requires that a person desiring to take the Uniform Combined 
State Law Examination (known as the Series 66 Exam) to 
qualify candidates as both securities agents and investment 
adviser representatives must pass the NASD General Securities 
Representative Examination (known as the Series 7 Exam) as a 
co-requisite for taking the Series 66 Exam. 

Comment Procedures: Comments concerning these rules may 
be addressed to David S. Massey, Deputy Securities 
Administrator at 300 N Salisbury St., Suite 100, Raleigh, NC 
27603, (919) 733-3924. Comments must be received no later 
than May 1, 2000. 

SECTION .1400 - REGISTRATION OF 
DEALERS AND SALESMEN 



examination as required by Rule .1413 of this 
Section. 

(b) The application for registration as a salesman shall be 
filed as follows: 

(1) NASD member dealers shall file all salesman 
applications for registration in the State of North 
Carolina with the NASAA/NASD Central 
Registration Depository, PrO: — Bcrx — 37441, 
Washing t on , — DC. 20013; P.O. Box 9401. 
Gaithersburg. MD 28898-9401. 

(2) Non-NASD member dealers shall file all salesman 
applications for registration in the State of North 
Carolina directly with the Securities Division. 

(c) The salesman or the dealer for which the salesman is 
registered shall file with the administrator, as soon as practicable 
but in no event later than 30 days, notice of any disciplinary 
action taken against a salesman by any exchange of which the 
dealer is a member; the Securities and Exchange Commission; 
the Commodity Futures Trading Commission; any national 
securities association registered with the Securities and 
Exchange Commission pursuant to Section 1 5 A of the Securities 
Exchange Act of 1934 or any state securities comrmssion and of 
any civil suit, warrant, criminal warrant, or criminal indictment 
filed against the salesman alleging violation of any federal or 
state securities laws. If the information contained in any 
document filed with the administrator is or becomes inaccurate 
or incomplete in any material respect, the salesman or the dealer 
for which the salesman is registered shall file a correcting 
amendment as soon as practicable but in no event later than 
thirty days. Such filing is to be made by NASD member dealers 
and their salesmen to the NASAA/NASD Central Registration 
Depository and non-NASD member dealers and their salesmen 
shall make such filing directly with the Securities Division. 

(d) Registration becomes effective at noon of the 30* day 
after a completed application is filed or such earlier time upon 
approval of the application by the administrator, unless 
proceedings are instituted pursuant to G.S 78A-39. The 
administrator may by order defer the effective date after the 
filing of any amendment but no later than noon of the 30* day 
after the filing of the amendment. 

(e) A salesman shall only be registered in this State with one 
dealer. 



.1402 APPLICATION FOR REGISTRATION OF 
SALESMEN 

(a) The application for registration as a salesman shall 
contam the following: 

(1) an executed Uniform Application for Securities and 
Commodities Industry' Representative and/or Agent 
(Form U-4) or the appropriate successor form; 

(2) a fee in the amount of fifty-five dollars ($55.00); 

(3) evidence of a passing grade of 70 percent on either: 

(A) the Uniform Securities Agent S^ate Law 
Examination (USASLE-Series 63), or 

(B) both the Uniform Combined State Law 
Examination (Series 66 Exam) and the General 
Securities Representative Exammation (Series 
2 Exam), as well as the appropriate NASD 



AuthorityG.S. 78A-37(a); 78A-37(b); 78A-38(c); 78A-39(b)(4); 
78A-49(a). 

.1413 SALESMAN EXAMINATION REQUIRED 

(a) Every application for registration as a salesman shall 
show evidence of a minimum passing grade of seventy percent 
on either: 

(1) the Uniform Securities Agent State Law Examination 
(USASLE-Series 63): or 

(2) both the Uniform Combined State Law Examination 
(Series 66 Exam) and the General Securities 
Representative Examination (Series 7 Exam) . The 
USASLE-Series — -63 — examina t ion — rs These 
examinations are given by the National Association of 
Securities Dealers (NASD). Each application for 



14:17 



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March 1, 2000 



1498 



RULE-MAKING PROCEEDINGS 



registration must also show that the apphcant has 
passed the appropriate NASD exam apphcable to 
apphcants for registration as a securities salesman . 
The scheduled dates, times and locations may be 
obtained by contacting the NASD, 1735 K S tre e t 
N oi ' tliw est7~ W a sliiug t on, D.C. Central Registration 
Depository, P.O. Box 9401, Gaithersburg, MD 
28898-9401 (202) 728-8800 (301) 590-6500 or the 
Securities Division. 

(b) The requirement of Paragraph (a) of this Rule shall not 
apply to any salesman who has been registered continuously 
since April 1 , 1981; provided that a lapse in registration in this 
State of less than one year shall not require compliance with 
Paragraph (a) of this Rule. New registrants after April 1, 1981, 
who have not been registered previously in this State and 
previously registered salesmen in this State whose registration 
has lapsed for one year or more shall comply with Paragraph (a) 
of this Rule. 

(c) The administrator may, upon a showing of luidue haidship 
good cause , waive the requirements of Paragraph (a) of this 
Rule. For purposes of this Rule, "good cause" for waiver of the 
examination requirement is shown by a demonstration that the 
applicant's understanding of the ethics and legal guidelines 
applicable to securities salesmen is comparable to that shovm by 
evidence of a passing grade on the examination for which waiver 
is sought. 

(d) Termination of the salesman's registration with the NASD 
for violation of NASD rules shall automatically terminate the 
salesman's registration with the State of North Carolina. 

Authority G.S. 78A-39(b)(4); 78A-49(a). 

SECTION .1700 - REGISTRATION OF INVESTMENT 

ADVISERS AND INVESTMENT ADVISER 

REPRESENTATIVES 

.1709 EXAMINATIONS FOR INVESTMENT 
ADVISERS AND INVESTMENT 
ADVISER REPRESENTATIVES 

fa) — Unl e ss othe i-wise waiv e d by th e adminis tr a tor , a n 
in v e s tm en t-advi se r re gi st e re d o r r e qui re d to b e r egis t er e d under 

S t a te Law Examina t ion with a s c o re of 7 0- or be t t e r as a 
condi t i o n of r egi stration as an inves t m e nt advis er . — If the 
inv e s t in e nl a dviser- is not an individual, an off ic e r (if t he 

is^a pax tiiei ship) shall take and pass tlus examination: 

(b) — Unl e ss ot h e rwise waiv e d b y the administrator, an 
inv e s tm en t advis e r repr esentat iv e-registered-or re quired t o be 
registered^ Tinder tiie Act shall~take^ and pass the Umfoiin 
Inv est men t Adviser S t ate Law Examina t ion wi t h a score of 70 
per cen t or b ette r. 



(c) Any p e r son who was re gi ste r e d as an investm e nt advis e i 
o r i nvest ment advis er repre s e n t a t ive in this sta t e as of the 
e ffe ct iv e da t e of tlies e Rul e s shall no t be r eq uired t o take and 
p ass tlie Uniform Inv e s t m e n t Advis er S t a te Law Examination. 

fd) — An ap p lican t wh o has t ak e n and pass e d th e Uniform 



Inv est men t Advis er S t a te Law Examina t ion with ; 



-ofTe 



a score -i 

perc e n t o r be tter witliin t wo y e ars prior to th e date the 
applica t ion is filed with tlie administrator, or a t any t im e if the 
applicant has not b e en inac ti v e in t lie inv e s t m e nt advisory 
b us i ness for mo r e than t wo years wh e n t h e a p plica t i o n is f iled ; 
shall n ot b e requir e d t o t ak e and pass tlie Unif o rm Inv e s ti n enl 
Advis e r S t a t e Law Examina t ion again. 

(a) Examination Requirements. A person applying to be 
registered as an investment adviser or investment adviser 
representative under the Investment Advisers Act shall provide 
the Administrator with proof that he or she has obtained a 
passing score on either: 

(1) The Uniform Investment Adviser Law Examination 
(Series 65 Exam); or 

(2) The General Securities Representative Examination 
(Series 7 Exam) and the Uniform Combined State 
Law Examination (Series 66 Exam). 

In the event the applicant for registration as an investment 
adviser is an entity, rather than an individual, the examination 
shall be taken on behalf of the applicant by one of its officers, a 
general partner, a manager, or other managing executive of 
comparable status and position. 

(b) Grandfathering. An individual who has not been 
registered in any jurisdiction for a period of two years shall be 
required to comply with the examination requirements of 
Paragraph (a) of this Rule. 

(c) Waivers. The examination requirement shall not apply to 
an individual who currently holds one of the following 
professional designations: 

(1) Certified Financial Planner (CFP) awarded by the 
International Board of Standards and Practices for 
Certified Financial Planners. Inc.; 

(2) Chartered Financial Consultant (ChFC) awarded by 
the American College. Bryn Mawr. Pennsylvania; 

(3) Personal Financial Specialist (PFS) awarded by the 
American Institute of Certified Public Accountants; 

(4) Chartered Financial Analyst (CFA) awarded by the 
Institute of Chartered Financial Analysts; 

(5) Chartered Investment Counselor (CIC) awarded by 
the Investment Counsel Association of America. Inc.; 
or 

(6) Such other professional designation as the 
Administrator may by order recognize. 

Authority G.S. 78C-19(b)(5); 78C-30(a): 78C-30(b). 



1499 



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14:17 



PROPOSED RULES 



This Section contains the text of proposed rules. At least 60days prior to the publication of text, the agency published a Notice 
of Rule-making Proceedings. The agency must accept comments on the proposed rule for at least 30 days from the publication 
date, or until the public hearing, or a later date if specified in the notice by the agency. The required comment period is 60 
days for a rule that has a substantial economic impact of at least five million dollars ($5,000,000). Statutory reference: G.S. 
150B-21.2. 



TITLE 10 - DEPARTMENT OF HEALTH AND 
HUMAN SERVICES 

Notice is hereby given in accordance with G S. 1508-21. 2 
that the DHHS - Division of Medical Assistance intends to 
amend rules cited as 10 NCAC 26B 0113. 26H .0304 and 
repeal the rules cited as 10 NCAC 26M .0301-.0305. Notice of 
Rule-making Proceedings was published in the Register on 
August 16, 1999 for 10 NCAC 26B .01 13; 26M .0301 -.0305 and 
on September 1, 1999 for 10 NCAC 26H .0304. 

Proposed Effective Date: August 1, 2000 

A Public Hearing vt'/// Ae conducted at 1:30p.m. on March 21, 
2000 at 1985 UmsteadDr., Room 132, Kirby Building, Raleigh, 
NC 27603. 

Reason for Proposed Action: 10 NCAC 26B .0113, 26M 
.0301-.0305 - The action was necessitated by the termination of 
the Carolina Alternatives Waiver and the exclusion of state 
hospitals as eligible providers. 

10 NCAC 26H .0304 - The application of the upper payment 
limit is an annual test performed by the Division of Medical 
Assistance to assure that the program is in compliance with the 
applicable federal regulations. The review this year of the cost 
report information for the fiscal period ending June 30, 1998, 
adjustedforwardfor inflation, would be expected to have a total 
of payments that would exceed the total of cost. 

Comment Procedures: Written comments concerning this rule- 
making action must be submitted by March 31, 2000 to Portia 
W. Rochelle, Rule-making Coordinator, Division of Medical 
Assistance, 1985 Umstead Drive, 2504 Mail Service Center, 
Raleigh, NC 27699-2504. 



Fiscal Impact 
State Local 



Sub. None 

/ 10 NCAC 26M 0301-0305 
10NCAC26B.0113, 26H.0304 



CHAPTER 26 - MEDICAL ASSISTANCE 

SUBCHAPTER 26B - MEDICAL ASSISTANCE 
PROVIDED 

SECTION .0100 - GENERAL 

.01 13 NC MEDICAID CRITERIA FOR CONTINUED 
ACUTE STAY IN AN INPATIENT 
PSYCHIATRIC FACILITY 

The following criteria apply to individuals under the age of 2 1 



in a psychiatric hospital or in a psychiatric unit of a general 
hospital, and to individuals aged 21 through 64 receiving 
treatment in a psychiatric unit of a general hospital These 
criteria shall be applied after the initial admission period of up 
to three days. To qualify for Medicaid coverage for a 
contmuation of an acute stay in an inpatient psychiatric facility 
a patient must meet each of the conditions specified in Items ( 1 ) 
through (4) of this Rule. To qualify for Medicaid coverage for 
continued post-acute stay in an inpatient psychiatric facility a 
patient must meet all of the conditions specified in Item (5) of 
this Rule. 

( 1 ) The patient has one of the following: 

(a) A current DSM-IV, Axis I diagnosis; or 

(b) A current DSM-IV, Axis II diagnosis and 
current symptoms/behaviors which are 
characterized by all of the following: 

(i) Symptoms/behaviors are likely to 

respond positively to acute inpatient 

treatment; and 
(ii) Symptoms/behaviors are not 

characteristic of patient's baseline 

fxinctioning; and 
(iii) Presenting problems are an acute 

exacerbation of dysfunctional behavior 

patterns which are recurring and 

resistive to change. 

(2) Symptoms are not due solely to mental retardation; 

(3) The symptoms of the patient are characterized by: 

(a) At least one of the following: 

(i) Endangerment of self or others; or 
(ii) Behaviors which are grossly bizarre, 
disruptive, and provocative (e.g. feces 
smearing, disrobing, pulling out hair); or 
(iii) Related to repetitive behavior disorders 
which present at least five times in a 24- 
hour period, or 
(iv) Directly result in an inabihty to maintain 
age appropriate roles; and 

(b) The symptoms of the patient are characterized 
by a degree of intensity sufficient to require 
continual medical/nursing response, 
management, and monitoring. 

(4) The services provided in the facility can reasonably 
be expected to improve the patient's condition or 
prevent ftuther regression so that treatment can be 
continued on a less intensive level of care, and proper 
treatment of the patient's psychiatric condition 
requires services on an inpatient basis under the 
direction of a physician. 

(5) Exceprt — for — patients — receiving servic es — through 
Cai'oliua Alteruatires and except t 



14:17 



NORTH CAROLINA REGISTER 



March 1, 2000 



1500 



PROPOSED RULES 



ho sp i t als wh e r e the discliarge requir e men t s ai e s e t o ut 
in 10 NCAC 15A, iii In the event that not all of the 
requirements specified in Items ( 1 ) through (4) of this 
Rule are met, reimbursement may be provided for 
patients through the age of 1 7 for continued stay in an 
inpatient psychiatric facihty at a post-acute level of 
care to be paid at the High Risk Intervention 
Residential High (HRI-R High) rate if the facility and 
program services are appropriate for the patient's 
treatment needs and provided that all of the following 
conditions are met: 

(a) The psychiatric facihty has made a referral for 
case management and after care services to the 
area Mental Health, Developmental 
Disabilities, Substance Abuse (MH/DD/SA) 
program which serves the patient's county of 
eligibihty. 

(b) The area MH/DD/SA program has found that 
no appropriate services exist or are accessible 
within a clinically acceptable waiting time to 
treat the patient in a community setting. 

(c) The area MH/DD/SA program has agreed that 
the patient has a history of sudden 
decompensation or significant regression and 
experiences weakness in his or her 
environmental support system which are likely 
to trigger a decompensation or regression. 
This history must be documented by the 
patient's attending physician. 

(d) The inpatient facility must have a contract to 
provide HRI-R, High with the area MH/DD/SA 
program which serves the patient's county of 
eligibility, or the area program's agent. 
Psychiatric hospitals or psychiatric units in 
general hospitals are eligible to establish 
contract relationships with all non-Carolina 
Alternatives area MH/DD/SA programs or 
their agents in accordance with statutory 
procedures as defined in G.S. 122C-142. 

(e) The Child and Family Services Section of the 
Division of Mental Health, Developmental 
Disabilities, Substance Abuse Services shall 
approve the use of extended HRI-R, High, 
based on criteria in Sub-items (a)-(c) of this 
Item. 

(f) The area MH/DD/SA program shall approve 
the psychiatric facility for the provision of 
extended HRI-R High, receive claims fi^om the 
inpatient facility, and provide reimbursement 
to the facility in accordance with the terms of 
its contract. 



NOTE: 



.0304 



The bold text reflects the changes which were 
approved by the Rules Review Commission and is 
waiting for Legislative Session 2000. 



RATE SETTING METHOD FOR NON-STATE 
FACILITIES 

(a) A prospective rate shall be determined annually for each 
non-state facility to be effective for dates of service for a 12 
month rate period beginning each July 1 . The prospective rate 
shall be paid to the provider for every Medicaid eligible day 
during the applicable rate year. The prospective rate may be 
determined after the effective date and paid retroactively to that 
date. The prospective rate may be 

changed due to a rate appeal under Rule .0308 ofthis Stale Plan 
Section or facility reclassification under Paragraph (b) of this 
Rule. Each non-state facihty, except those facilities where 
Paragraph (v) of this Rule applies, shall be classified into one of 
the following groups: 

(1) Group 1- Facilities with 32 beds or less. 

(2) Group 2- Facilifies with more than 32 beds. 

(3) Group3-Facilities with medically fragile clients. For 
rate reimbursement purposes under this Rule 
medically fragile clients are defined as any individual 
with complex medical problems who have chronic 
debilitating diseases or conditions of one or more 
physiological or organ systems which generally make 
them dependent upon 24-hour a day 
medical/nursing/health supervision or intervention. 

(4) Facilifies in group 1 or 2 in Subparagraph (a)(1) or (2) 
of this Rule shall be fiirther classified in accordance 
to the level of disability of the facility's clients, as 
measured by the Developmental Disabilities Profile 
(DDP) copyrighted assessment instrument which 
along with the scoring instrument are hereby 
incorporated by reference, including subsequent 
amendments and editions. This material is available 
for inspection and copies may be obtained from the 
Division of Medical Assistance, 1985 Umstead Drive, 
Raleigh, North Carolina 27603 at a cost of twenty 
cents ($.20) per page. A summary of the levels of 
disability is shown in the following chart: 



FACILITY DDP SCORE 

Level Low 

1 200.00 

2 125.00 

3 100.00 

4 75.00 

5 50.00 



High 

300.00 

199.99 

124.99 

99.99 

74.99 



AuthorityG.S. l08A-25(h); 108A-54: 42C.F.R. 441 Subpart D. 

SUBCHAPTER 26H - REIMBURSEMENT PLANS 
SECTION .0300 - ICF-MR PROSPECTIVE RATE PLAN 



(b) Facilifies shall be reclassified into appropriate groups as 
defined in Paragraph (a) of this Rule. 

(1) When a facility is reclassified, the rate shall be 
adjusted retroactively back to the date of the event 
that caused the reclassification. This adjustment shall 
give fiill consideration to any reclassification based 



1501 



NORTH CAROLINA REGISTER 



March 1, 2000 



14:17 



PROPOSED RULES 



on the change in facts or circumstances during the 
year. Overpayments related to this retroactive rate 
adjustment shall be repaid to the Medicaid program. 
Underpayments related to this retroactive rate 
adjustment shall be paid to the provider. 

(2) The provider shall be given the opportunity to appeal 
the merits of the reclassification of any facility, prior 
to any decision by the Division of Medical 
Assistance. 

(3) The provider shall be notified in writing 30 days 
before the implementation of new rates resulting from 
the reclassification of any facihty. 

(4) The providers and the Division of Medical Assistance 
shall make every reasonable effort to ensure that each 
facility is properly classified for rate setting piuposes. 

(5) A provider shall file any request for facility 
reclassification in writing with the Division of 
Medical Assistance no later than 60 days subsequent 
to the proposed reclassification effective date. 

(6) For facilities certified prior to July 1, 1993, the 
facility DDP score calculated for fiscal year 1993 
shall be used to estabhsh proper classification at July 
1, 1995. 

(7) For facihties certified after June 30, 1993, the most 
recent facility DDP score shall be used to establish 
proper classification. 

(8) A facility reclassification review shall use the most 
current facility DDP score. 

(9) A facility's DDP score shall be subject to independent 
vaUdation by the Division of Medical Assistance. 

(10) A new facility that has not had a DDP survey 
conducted on its clients shall be categorized as a level 
2 facility for rate setting purposes, pending 
completion of the DDP survey. Upon completion of 
the DDP survey, the facility shall be subject to 
reclassification and rates shall be adjusted 
retroactively back to the date of certification. 
Overpayments related to this retroactive adjustment 
shall be paid to the Medicaid program. 
Underpayments related to this retroactive rate 
adjustment shall be paid to the provider, 
(c) Facility rates under this Rule shall be estabhshed at July 
1, 1995, under the following: 

(1) For facilities certified prior to July 1, 1993, rates shall 
be derived from the 1993 cost reports. 

(2) For facilities certified during fiscal year 1993-1994, 
the fiscal year 1994 facility specific cost report shall 
be used to derive rates. 

(3) For facihties certified during fiscal year 1994-1995, 
the fiscal year 1995 facility specific cost report shall 
be used to derive rates. 

(A) Rates for these facilities shall not be adjusted, 
except for the impact of inflation under 
Paragraph (k) of this Rule, until the fiscal year 
1995 cost report has been properly reviewed. 
Rates for these facilities shall be adjusted 
retroactively back to July 1, 1995, once the 
fiscal year 1 995 facility specific cost report has 



been pr o per l y reviewed. Overpayments 
related to this retroactive rate adjustment shall 
be repaid to the Medicaid program. 
Underpayments related to this retroactive rate 
adjustment shall be paid to the provider. 
(4) Facilities with rates established during a rate appeal 
proceeding with the Division of Medical Assistance 
during fiscal years 1994 or 1995 shall not have their 
rates established in accordance with Subparagraph 
(c)(1), (c)(2), or (c)(3) of this Rule 
(2^ The rates for these facilities shall remain at the 
level approved in the rate appeal proceeding 
adjusted only for inflation, as reflected in 
Paragraph (k) of this Rule. 

(d) For facilities certified after June 30, 1993, rates developed 
from filed cost reports for fiscal years subsequent to 1 993 may 
be retroactively adjusted if there is found to exist more than a 
two percent difference between the filed per diem cost and 
either the desk audited or field audited per diem cost for the 
same reporting period. Rates developed from desk audited cost 
reports may be retroactively adjusted if there is found to exist 
more than a two percent difference between the desk audited per 
diem cost and the field audited per diem cost for the same 
reporting period. The rate adjustment may be made after written 
notification to the provider 30 days prior to implementation of 
the rate adjustment. 

(e) Each prospective rate developed in accordance with 
Subparagraph (c)(1), (c)(2), or (c)(3) of this Rule consists of the 
sum of two components as follows: 

( 1 ) Indirect care rate. 

(2) Direct care rate. 

(f) A uniform industry wide indirect care rate shall be 
estabhshed for each facihty category shown under Subparagraph 
(a)(1), (a)(2), or (a)(3) of this Rule. 

( 1 ) The indirect rate for group 1 facilities is based on the 
fiftieth percentile of the following costs incurred by 
all group 1 facilities with six beds or less, except 
those related by common ownership or control to 
more than 40 said facilities: 

(A) The sum of the cost of property ownership and 
use, administrative and general, and operation 
and maintenance of plant, as determined by the 
Myers and Stauffer study performed on the 
1993 base year cost reports. 

(2) The indirect rate for group 2 facilities is based on the 
fiftieth percentile of the costs noted in Part (0( 1 )fA) 
of this Rule incurred by the group 2 facilities, as 
determined by the Myers and Stauffer study 
performed on the 1 993 base year cost reports 

(3) The indirect rate for group 3 facilities is based on the 
fiftieth percentile of the costs noted in Part (f)( 1 )(A) 
of this Rule incurred by the group 3 facilities as 
determined by the Myers and Stauffer study 
performed on the 1993 base year cost repons 

(4) The indirect rates established under Subparagraphs 
(0( ! ), (f)(2), and (f)(3) of this Rule shall be reduced 
as determined based on industry cost analysis by an 
amount not to exceed four percent to account for 



14:17 



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March 1, 2000 



1502 



PROPOSED RULES 



expected operating efficiencies, 
(g) The direct care rate for facilities certified prior to July 1, 
1993, shall be based on the Myers and Stauffer study performed 
on the 1993 base year cost reports. 

( 1 ) The direct care rate for all facilities certified during 
fiscal years subsequent to fiscal year 1 993 is based on 
the first facility specific cost report filed after 
certification. Based on said cost report, the direct 
care rate is equal to the sum of all allowable costs 
reflected in the ICF-MR cost report cost centers, as 
included in the ICF-MR cost report format effective 
July 1, 1993, except for the following indirect cost 
centers: 

(A) Property Ownership and Use 

(B) Operation and Maintenance of Plant and 
Housekeeping-Non-Labor 

(C) Administrative and General 

(2) The direct care rate shall be limited to the lesser of 
the actual amount incurred in the base year or the cost 
limit derived fi-om the fiftieth percentile of direct care 
costs incurred by the related facihty group in the 
fiscal year 1 993 base year, based on the Myers and 
Stauffer study. 

(3) The fiftieth percentile cost limit shall be reduced by 
one percent each year, for the four year period 
beginning July 1, 1996, in order to account for 
expected operating efficiencies, as determined based 
on industry cost analysis. 

(4) The fiftieth percentile cost limit shall be increased 
each year by price level changes calculated in 
accordance with Paragraph (k) of this Rule. 

(h) The indirect rate shall not be subject to cost settlement. 

( 1 ) Costs above the indirect rate shall not be paid to the 
provider. 

(2) Costs savings below the indirect rate shall not be 
recouped fi^om the provider. 

(i) The direct care rate shall be subject to cost settlement, 
based on the cost report, subject to audit, filed with the Division 
of Medical Assistance. 

( 1 ) Costs above the direct rate shall not be paid to the 
provider. 

(2) Cost savings below the direct rate shall be recouped 
fi"om the provider. 

(j) Facilities with rates estabhshed during a rate appeal 
proceeding with the Division of Medical Assistance during fiscal 
years 1994 or 1995 may choose to cost settle under the 
provisions of Paragraphs (h) and (i) of this Rule, or under the 
following procedure: 

( 1 ) If, during a cost reporting period, total allowable costs 
are less than total prospective payments, then a 
provider may retain one-half of said difference, up to 
an amount of five dollars ($5.00) per pafient day. The 
balance of unexpended payments shall be refunded to 
the Division of Medical Assistance. Costs in excess 
of a facility's total prospective payment rate are not 
reimbursable. 

(2) The facilities subject to the this Paragraph shall make 
the election on cost settlement methodology on or 



before the filing of the annual cost report with the 
Division of Medical Assistance 

(3) An election to follow the cost settlement procedures 
of Paragraphs (h) and (i) of this Rule shall be 
irrevocable. 

(4) Rates established for these facilities during future rate 
appeal proceedings shall be subject to the cost 
settlement procedures of Paragraphs (h) and (i) of this 
Rule. 

(k) To compute each facility's current prospective rate, the 
direct and indirect rates established by Paragraphs (f) and (g) of 
this Rule shall be adjusted for price level changes since the base 
year. No inflation factor for any provider shall exceed the 
maximum amount permitted for that provider by federal or state 
law and regulations. 

(1) Price level adjustment factors are computed using 
aggregate costs in the following manners: 

(A) Costs shall be separated into three groups: 

(i) Labor, 
(ii) Non-labor, 
(iii) Fixed. 

(B) The relative weight of each cost group is 
calculated to the second decimal point by 
dividing the total costs of each group (labor, 
nonlabor, and fixed) by the total cost of the 
three categories. 

(C) Price level adjustment factors for each cost 
group shall be established as follows: 

(i) Labor. The percentage change for labor 
costs is based on the projected average 
hourly wage of North Carolina service 
workers. Salaries for all personnel shall 
be hmited to levels of comparable 
posirions in state owned facilities or 
levels specified by the Division of 
Medical Assistajice. Assistance based 
upon market analysis. 

(ii) Nonlabor. The percentage change for 
nonlabor costs is based on the projected 
annual change in the implicit price 
deflator for the Gross National Product 
as provided by the North Carolina 
Office of State Budget and 
Management. 

(iii) Fixed. No price level adjustment shall 
be made for this category. 

(D) The weights computed in Part (k)( 1 )(B) of this 
Rule shall be multiplied by the rates computed 
in Part (kX 1 )(C) of this Rule. These weighted 
rates shall be added to obtain the composite 
inflation rate to be applied to both the direct 
and indirect rates. 

(2) If necessary, the Division of Medical Assistance shall 
adjust the annual inflation factor in order to prevent 
payment rates fi"om exceeding upper payment limits 
established by Federal Regulations. 

(1) Effective July 1, 1995, any rate reductions resulting from 
this State-Ptan Rule shall be implemented based on the 



1503 



NORTH CAROLINA REGISTER 



March 1, 2000 



14:17 



PROPOSED RULES 



following deferral methodology: 

( 1 ) Rates shall be reduced for the excess of current rates 
over base year costs plus inflation. 

(2) Rates shall be reduced a maxmium of 50 percent of 
the fiscal 1996 inflation rate for the excess of actual 
costs over applicable cost limits. This reduction shall 
result in the facility receiving at a minimum 50 
percent of the 1996 inflation rate. Any excess 
reduction shall be earned forward to fiiture years. 

(3) Total reduction in future years related to the excess 
reduction carried forward from Subparagraph (1)(2) of 
this Rule, shall not exceed tJie annual rate of inflation. 
This reduction shall result in the facility receiving at 
a minimum the rate established in Paragraph (!)(2) of 
this Rule. Any excess reduction shall be carried 
forward to future years, until the established rate 
equals that generated by Paragraphs (f), (g), and (k) 
of this Rule. 

(4) Rates calculated based on Subparagraphs (1)(2) and 
(3) of this Rule shall be cost settled based on the 
provisions of Subparagraph (j)(l) of this Rule until 
the fiscal year that the facility receives fiill price level 
increase under Paragraph (k) of this Rule. 

(A) A provider may make an irrevocable election 
to cost settle under the provisions of 
Paragraphs (h) and (i) of this Rule during the 
deferral period. 

(B) Once the rates calculated based on 
Subparagraphs (1)(2) and (3) of this Rule reach 
the fiscal year that the facility receives the full 
price level increase under Paragraph (k) of this 
Rule, then said fiscal year's rates shall be cost 
settled based on Paragraphs (h) and (i) of this 
Rule. 

(C) Chain providers are allowed to file combined 
cost reports, for cost settlement purposes, for 
facilities that use the same cost settlement 
methodology and have the same uniform rate. 

(D) A provider may request from the Division of 
Medical — Assistance permission elect to 
continue cost settlement under Subparagraph 
G)(l) of this Rule after the deferral period 
expires. Said request election shall be made 
each year, 30 days prior to the cost report due 
date. 

(m) The initial rate for facilities that have been awarded a 
Certificate of Need is established at the lower of the fair and 
reasonable costs m the provider's budget, as determined by the 
Division of Medical Assistance, or the projected costs in the 
provider's Certificate of Need application, adjusted from the 
projected opening date in the Certificate of Need application to 
the current rate period in which the facility is certified based on 
the pnce level change methodology set forth in Paragraph (k) of 
this Rule, or the rate currently paid to the owning provider, if the 
provider currently has an approved chain rate for facilities in the 
related facility category. The rate may be rebased to the actual 
cost incurred m the first fiill year of normal operations in the 
year an audit of the first year of normal operanon is completed. 



( 1 ) In the event of a change in ownership, the new owner 
receives no more than the rate of payment assigned to 
the previous owner. 

(2) Except in cases wherein the provider has failed to file 
supporting information as requested by the Division 
of Medical Assistance, initial rates shall be granted to 
new enrolled facilities no later than 60 days from the 
provider's fihng of properly prepared budgets and 
supporting information. 

(3) The initial rate for a new facility shall be applicable to 
all dates of service commencing with the date the 
facility is certified by the Medicaid Program. 

(4) The initial rate for a new facility shall not be entered 
into the Medicaid payment system until the facility is 
prop e rly enrolled in the Medicaid program and a 
Medicaid identification number has been assigned to 
the facility by the Division of Medical Assistance. 

(n) A provider with more than one facility may be allowed to 
recover costs through a combined uniform rate for all facilities. 

( 1 ) Combined uniform rates for chain providers shall be 
approved upon written request fi"om the provider and 
after review by the Division of Medical Assistance. 

(2) In determining a combined uniform rate for a 
particular facility group, the weighted average of each 
facility's rate, calculated in accordance to all other 
provisions of this Rule, shall be used. 

(3) A chain provider with facility(s) that fall under 
Paragraphs (h) and (i) of this Rule and with facihty(s) 
that fall under Subparagraph (1)(4) of this Rule may 
elect to include the facilities in a combined cost report 
and elect to cost settle under either Paragraphs (h) 
and (i) or Subparagraph (1)(4) of this Rule. The cost 
settlement election shall be made each year, 30 days 
prior to the cost report due date. 

(o) Each out-of-state provider shall be reimbursed at the 
lower of the applicable North Carolina rate, as established by 
this plan Rule for in-state facilities, or the provider's per diem 
rate as established by the state in which the provider is located. 
An out-of-state provider is defined as a provider that is enrolled 
in the Medicaid program of another state and provides ICF-MR 
services to a North Carolina Medicaid client in a facility located 
in the state of enrollment. Rates for out-of-state providers are 
not subject to cost settlement. 

(p) Under no circumstances shall the Medicaid per diem rate 
exceed the private pay rate of a facility. 

(q) Should the Division of Medical Assistance be unable to 
establish a rate for a facility, based on this Rule and the 
apphcable facts known, the Division of Medical Assistance may 
approve an interim rate. 

(1) The intenm rate shall not exceed the rate cap 
established under this Rule for the applicable facility 
group. 

(2) The interim rate shall be replaced by a permanent 
rate, effective retroactive to the commencement of the 
interim rate, by the Division of Medical Assistance, 
upon the determination of said rate based on this Rule 
and the applicable facts. 

(3) The provider shall repay to the Division of Medical 



14:17 



NORTH CAROLINA REGISTER 



March 1, 2000 



1504 



PROPOSED RULES 



Assistance any overpayment resulting from the 
interim rate exceeding the subsequent permanent rate. 

(r) In addition to the prospective per diem rate developed 
under this Rule, effective July 1, 1992, an interim payment add 
on shall be applied to the total rate to cover the estimated cost 
required under Title 29, Part 1910, Subpart 2, Rule 1910,1030 
of the Code of Federal Regulations. The interim rate shall be 
subject to final settlement reconcihation with reasonable cost to 
meet the requirements of Rule 1910 1030. The final settlement 
reconciliation shall be effectuated during the annual cost report 
settlement process. An interim rate add on to the prospective 
rate shall be allowed, subject to final settlement reconciliation, 
in subsequent rate periods until cost history is available to 
include the cost of meeting the requirements of Rule 1910. 1030 
in the prospective rate. This interim add on shall be removed, 
upon 10 days written notice to providers, should it be 
determined by appropriate authorities that the requirements 
under Title 29, Part 1910, Subpart 2, Rule 1910.1030 of the 
Code of Federal Regulations do not apply to ICF-MR iacihties. 

(s) All rates, except those noted otherwise in this Rule, 
approved under this Rule are considered to be permanent. 

(t) In the event that the rate for a facility caimot be developed 
so that it shall be effective on the first day of the rate period, due 
to the provider not submitting the required reports by the due 
date, the average rate for facilities in the same facility group, or 
the facility's current rate, whichever is lower, shall be in effect 
until such time as the Division of Medical Assistance can 
develop a new rate. 

(u) When the Division of Medical Assistance develops anew 
rate for a facility for which a rate was paid in accordance with 
Paragraph (t)of this Rule, the rate developed shall be effective 
on the first day of the second month following the receipt by the 
Division of Medical Assistance of the required reports. The 
Division of Medical Assistance may, upon its own motion or 
upon application and jnst cause related to patient care shown 
by the provider, within 60 days subsequent to submission of the 
delinquent report, make the rate retroactive to the beginning of 
the rate period in question. Any overpayment to the provider 
resulting from this temporary rate being greater than the final 
approved prospective rate for the faciUty shall be repaid to the 
Medicaid Program. 

(v) ICF-MR facilities meeting the requirements of the North 
Carolina Division of Facility Services as a facility affiliated with 
one or more of the four medical schools in the state and 
providing services on a statewide basis to childien with various 
developmental disabihties who are in need of long-term high 
acuity nursing care, dependent upon high technology machines 
(i.e. ventilators and other supportive breathing apparatus) 
monitors, and feeding techniques shall have a prospective 
payment rate that approximates cost of care. The payment rate 
may be reviewed periodically, no more than quarterly, to assure 
proper payment. A cost settlement at the completion of the 
fiscal period year end is requu'ed. Payments in excess of cost 
are to be returned to the Division of Medical Assistance. 

(w) A special payment in addition to the prospective rate 
shall be made in the year that any provider changes from the 
cash basis to the accrual basis of accounting for vacation leave 
costs. The amount of this payment shall be determined in 



accordance with Title XVIII allowable cost principles and shall 
equal the Medicaid share of the vacation accrual that is charged 
in the year of the change including the cost of vacation leave 
earned for that year and all previous years less vacation leave 
used or expended over the same time period and vacation leave 
accrued prior to the date of certification. The payment shall be 
made as a lump sum payment that represents the total amount 
due for the entire fiscal year. An interim payment may be made 
based on an estimate of the cost of the vacation accrual. The 
payment shall be adjusted to actual cost after audit. 

(x) The annual prospective rate, effective beginning each July 
1 , for facilities that commenced operations under the Medicaid 
Program subsequent to the base year used to establish rates, and 
therefore did not file a cost report for the base year, shall be 
based on the facility's initial rate, established in accordance with 
Paragraph (m) of this Rule, and the applicable price level 
changes, in accordance with Paragraph (1) of this Rule. 

(v) Effective for fiscal years beginning on or after fiscal 
year 1998, installation cost of Fire Sprinkler Systems in an 
ICF-MR Facility shall be reimbursed in the following 
manner. 

(1) Upon receipt of the documentation listed in Parts 
CA) through (E) of this Subparagraph, the Division 
of Medical Assistance shall reimburse directly to 
the provider 90 percent of the verified cost. 






££} 



All related invoices. 

Verification from the Division of Facility 
Services that the Sprinkler System is 
neededr needed to maintain certification for 
participation in the Medicaid program- 
Statement from appropriate authorities 
that the Sprinkler System has been 
installed. Examples of a ppropriate 
authorities for this purpose would include 
local building inspectors, fire/safety 
inspectors, insurance company inspectors, 
or the construction section of the Division of 
Facilities Services. 

(D) Three bids to install the system. 

(E) Prior approval from the Division of Medical 
Assistance for any installation projected to 
cost more than twenty-five thousand dollars 
($25,000). Prior approval shall be granted 
based upon determination by the Division of 
Medical Assistance that the cost is 
reasonable considering the specifics of the 
installation. The burden to provide 
adequate documentation that the cost is 
reasonable is the responsibility of the 
provider. 

(2) The unreimbursed installation cost shall be 
reimbursed after audit through the annual Cost 
Settlement Process. This portion shall be offset by 
profits, after taking into consideration any 
indirect profits and direct losses. Any 
overpayments determined after audit shall be 
returned to the program by the provider through 
the annual cost settlement process. 



1505 



NORTH CAROLINA REGISTER 



March 1, 2000 



14:17 



PROPOSED RULES 



(3) The installation of the Sprinkler System is subject 
to Prudent Buyer Standards contained in the 
HCFA-15. 

(4) The Sprinkler System's installation costs shall be 
p r operl y recorded on the provider's ICF-MRCost 
Report. 

Authority G.S. I08A-25(b): 108A-54; 108A-55; 42C.F.R. Part 
447, Subpart C; 

SUBCHAPTER 26M - MANAGED CARE AND 
PREPAID PLANS 

SECTION .0300 - MENTAL HEALTH MANAGED 
CARE-CAROLINA ALTERNATIVES 

.0301 PROGRAM DEFINITION AND DEFINITION 

OF TERMS 
.0302 ACCESS TO CARE 
.0303 ENROLLEE EDUCATION 

.0304 RELATIONSHIP WITH SUB-CONTRACTORS 
.0305 ENROLLEE AND SUB-CONTRACTOR 

APPEALS 



Authority G.S. 108A-25(b); 
222(g); 42CFR.431. 



108A-54-55; S.L. 1993, c. 321, s. 



TITLE 16 - DEPARTMENT OF PUBLIC EDUCATION 

Notice is hereby given in accordance with G.S. 150B-21.2 
that the State Board of Education intends to amend the rule 
cited as 16 NCAC 6C .0402. Notice of Rule-Making 
Proceedings was published in the Register on December 1, 
1999. 

Proposed Effectiye Date: April 1, 2001 

A Public Hearing will be conducted at 9: 30 am on March 16, 
2000 in Room 224, Education Bldg, Raleigh, NC. 

Reason for Proposed Action: Chapter 1999-170 enacted G.S. 
1 15C-12.2, requiring the State Board of Education to adopt 
rules concerning voluntary shared lea\>e. 

Comment Procedures: Comments may be presented orally or 
in writing at the hearing, and in writing through March 31, 
2000, by mail directed to Harry Wilson, State Board of 
Education, 301 N. Wilmington St., Raleigh, 27601-282.5; by fax 
to (919) 715-0764; or by e-mail to hwilson@dpi. state. nc. us. 



Fiscal Impact 
State Local 



Sub. 



None 
• 



CHAPTER 6 -ELEMENTARY AND SECONDARY 
EDUCATION 



SUBCHAPTER 6C - PERSONNEL 
SECTION .0400 - LEAVE 

.0402 SICK LEAVE 

(a) Public school employees who earn vacation leave shall 
also cam sick leave. Full-time employees shall earn one day per 
month or the number of hours worked daily by a full time 
employee in that class of work. Part-time employees shall earn 
and may use sick leave in proportion to the part of the day for 
which they are employed. 

(b) The LEA may allow sick leave to be used for temporary 
disability which prevents an employee from performing his or 
her usual duties, illness in the employee's immediate family and 
attendant medical appointments which require the employee's 
attendance, death in the immediate family and medical 
appointments for the employee. The For purposes of this Rule 
the term immediate family i n clu de s shall include spouse, 
children, par e n t s (including t h e step r e l at ionsh ip ) parents, 
brothers, sisters, grandparents, grandchildren, and dependents 
hving in the household, exc e p t tha t in t li e case of d e ath, the t e rm 
does no t include dependen t s bu t do e s — include siblings, 
giandparen t s, gi ' aiidchildren, and t he s te p, half a nd in-l aw 
re la t i o nships, household. The term shall also mclude the step, 
half and in-law relationships. An employee of any public school 



system 



contribute vacation or sick leave to another 



immediate family member who is employed by any State agency 
or public school system. 

(c) Employees must take leave in one-half days, whole days, 
or hours as determined for earning purposes by the local board. 

(d) Employees may accumulate sick leave indefinitely and 
may transfer sick leave as in the case of vacation leave. 

(e) LEAs may advance sick leave not to exceed the amount 
which would be earned within the school year. 

(f) An employee who is overdrawn on sick leave when the 
employee separates from service will have the excess leave 
corrected through a deduction from the final salary check. 

(g) If the period of sick leave taken is less than 30 days, the 
employee will return to his or her position with the LEA. If the 
period of temporary disabihty exceeds 30 days, the 
superintendent shall determine when the employee is to be 
reinstated. The superintendent makes this decision based on the 
welfare of the students and the need for continuity of 
instruction. 

(h) The LEA shall credit an employee who separates from 
service and returns within 60 months with all sick leave 
accumulated to the time of separation. 

(i) Permanent full or part-time mstructional personnel, 
excluding teacher assistants, who are absent due to their 
personal illness or injury in excess of their accumulated sick 
leave, shall be allowed extended sick leave of up to 20 work 
days throughout the regular term of employment. These days do 
not have to be consecutive A new employee must have reported 
to work to be eligible for extended sick leave. The 
superintendent may require a doctor's certificate or other 
acceptable proof of the reason for the absence. 

(j) An LEA may establish a voluntary sick leave bank for its 
employees. Any employee of an LEA that establishes a 



]4:17 



NORTH CAROLINA REGISTER 



March 1, 2000 



1506 



PROPOSED RULES 



voluntary sick leave bank may, but is not required to, participate 
in the voluntary sick leave bank. 

(1) The LEA shall develop and implement a plan for 
participation that shall include those factors listed in 
G.S. 115C-336(b)(iHvii) and the following: 

(A) a uniform number of days to be contributed to 
the bank by participants; 

(B) provisions for legitimate usage of days by 
participants; 

(C) means to protect against overdraft of total 
contributed days; and 

(D) safeguards to prevent abuses by participants. 

(2) The LEA shall establish a sick leave bank committee 
to administer the sick leave bank. 

(A) The LEA shall assure that all local personnel 
are equitably represented on the committee. 

(B) The LEA shall develop operational rules for 
the efficient and effective functioning of the bank. 

(C) The LEA shall develop procedures for 
participants' usage of days based upon 
requirements in the plan. 

(D) The LEA shall specify the limits of the 
committee's authority. 

(E) The committee shall notify all participating 
employees of the ways in which their 
participation will affect their state retirement 
account. 

(3) The LEA shall ensure that its operational procedures 
require: 

(A) that payment of substitutes and matching social 
security are charged to the appropriate 
program report code; and 

(B) the reporting to the division of school business 
services of the Department of the number of 
employees participating itemized by job 
classification, the number of sick leave days 
withdrawn, the cost of the leave, and other data 
required for fiscal and programmatic 
accountability. 

Authority G.S. 115C-12(8); 115C-336. 

************♦♦♦♦+*+* 

Notice is hereby given in accordance with G.S. I50B-21.2 
that the Slate Board of Education intends to amend rules 
cited as 16 NCAC 6D .0305 - .0306, .0503. Notice of Rule - 
Making Proceedings was published in the Register on 
December 1. 1999. 

Proposed Effective Date: July 1, 2000 

APublicHearing for 16 NCAC 6D. 0305 -.0306,. 0503 will be 

conducted at 10:30 am on March 16, 2000 in Room 224, 
Education Bldg, Raleigh, NC. 

Reason for Proposed Action: The State Board of Education 
has determined that these rules are directly related to the 



implementation of the "ABC's Act" and it is proceeding under 
the authority granted by that Act. The State Board ofEducation 
has determined that there should be greater uniformity among 
high schools in how end-of-course tests are factored into 
student final grades. The Board has also determined that 
sanctions for violation of its testing code of ethics are needed to 
deal with those instances where educators misuse the testing 
program to distort the student performance of a class or of a 
school. The Board has also determined that high school 
students should be allowed to choose among several courses of 
study, each of which leads to graduation. 

Comment Procedures: Comments may be presented orally or 
in writing at the hearing, and in writing through March 31, 
2000, by mail directed to Harry Wilson, State Board of 
Education, 301 N. Wilmington St., Raleigh, 27601-2825; by fax 
to (919) 715-0764; or by e-mail to hwilson@dpi. state. nc.us. 



Fiscal Impact 
State Local 



Sub. 



None 
/ 



CHAPTER 6 -ELEMENTARY AND SECONDARY 
EDUCATION 

SUBCHAPTER 6D - INSTRUCTION 

SECTION .0300 - CERTIFICATION 

.0305 END-OF-COURSE TESTS 

(a) The LEA shall include each student's end-of-course test 
results in the student's permanent records and high school 
transcript. 

(b) The LEA shall give each end-of-course test within a 1 10- 
minute period within the final ten days of the course. 

(c) Starting with the 2000-2001 school year LEAs shall use 
EOC test results as at least 25% of the student's final grade for 
the following courses: English 1. Algebra 1. Biology. US History, 
and Economic. Legal, and Pohtical Systems (ELPS). LEAs shall 
use EOC test results from other courses as a part of the student's 
final grade. LEAs shall adopt policies regarding the use of EOC 
test results in assigning final grades. 

(d) Students who are enrolled for credit in courses in which 
end-of-course tests are required shall take the appropriate end- 
of-course test. 

(e) Students who are exempt from final exams by local board 
of education policy shall not be exempt from end-of-course 
tests. 

(f) Each student shall take the appropriate end-of-course test 
the first time the student takes the course even if the course is an 
honors or advanced placement course. 

(g) Students shall take the appropriate end-of-course test at 
the end of the course regardless of the grade level in which the 
course is offered. 

(h) Students who are identified as failing a course for which 
an end-of-course test is required shall take the appropriate end- 
of-course test. 

(i) Effective with the 1999-2000 school year students may 



1507 



NORTH CAROLINA REGISTER 



March 1, 2000 



14:17 



PROPOSED RULES 



drop a course with an end-of-course test within the first 1 days 
of a block schedule or within the first 20 days of a traditional 
schedule. 

Authority G.S. lI5C-12(9)c; 115C-81 (b)(4). 

.0306 TESTING CODE OF ETHICS 

(a) This Rule shall apply to all public school employees who 
are involved in the state testing program. 

(b) The superintendent or superintendent's designee shall 
develop local policies and procedures to ensure maximum test 
security in coordination with the pohcies and procedures 
developed by the test publisher. The principal shall ensure test 
security within the school building. 

(1) The principal shall store test materials in a secure, 
locked area. The principal shall allow test materials to 
be distributed immediately prior to the test 
administration. Before each test administration, the 
building level test coordinator shall accurately count 
and distribute test materials. Immediately after each 
test administration, the building level test coordinator 
shall collect, count, and return all test materials to the 
secure, locked storage area. 

(2) "Access" to test materials by school personnel means 
handling the materials but does not include reviewing 
tests or analyzing test items. The superintendent or 
superintendent's designee shall designate the 
personnel who are authorized to have access to test 
materials. 

(3 ) Persons who have access to secure test materials shall 
not use those materials for personal gain. 

(4) No person may copy, reproduce, or paraphrase in any 
manner or for any reason the test materials without 
the express written consent of the test publisher. 

(5) The superintendent or superintendent's designee shall 
instruct personnel who are responsible for the testing 
program in testing administration procedures. This 
instruction shall include test administrations that 
require procedural modifications and shall emphasize 
the need to follow the directions outlined by the test 
pubhsher. 

(6) Any person who learns of any breach of security, loss 
of materials, failure to account for materials, or any 
other deviation from required security procedures 
shall immediately report that information to the 
principal, building level test coordinator, school 
system test coordinator, and state level test 
coordinator. 

(c) Preparation for testing. 

(1) The superintendent shall ensure that school system 
test coordinators: 

(A) secure necessary materials; 

(B) plan and implement training for building level 
test coordinators, test administrators, and 
proctors; 

(C) ensure that each building level test coordinator 
and test administrator is trained in the 
implementation of procedural modifications 



used during test administrations; and 
(D) in conjunction with program administrators, 
ensure that the need for test modifications is 
documented and that modifications are limited 
to the specific need. 

(2) The principal shall ensure that the building level test 
coordinators: 

(A) maintain test security and accountability of test 
materials; 

(B) identify and train personnel, proctors, and 
backup personnel for test administrations; and 

(C) encourage a positive atmosphere for testing. 

(3) Test administrators shall be school personnel who 
have professional training in education and the state 
testing program. 

(4) Teachers shall provide instruction that meets or 
exceeds the standard course of study to meet the 
needs of the specific students in the class. Teachers 
may help students improve test-taking skills by; 

(A) helping students become familiar with test 
formats using curricular content; 

(B) teaching students test-taking strategies and 
providing practice sessions; 

(C) helping students learn ways of preparing to 
take tests; and 

(D) using resource materials such as test questions 
from test item banks, testlets and linking 
documents in instruction and test preparation. 

(d) Test administration. 

(1) The superintendent or superintendent's designee 
shall: 

(A) assure that each school establishes procedures 
to ensure that all test administrators comply 
with test publisher guidelines; 

(B) inform the local board of education of any 
breach of this code of ethics; and 

(C) inform building level administrators of their 
responsibilities. 

(2) The principal shall: 

(A) assure that school personnel know the content 
of state and local testing pohcies; 

(B) implement the school system's testing policies 
and procedures and establish any needed 
school policies and procedures to assure that 
all ehgible students are tested fairly; 

(C) assign trained proctors to test adminisfrations; 
and 

(D) report all testing irregularities to the school 
system test coordinator. 

(3) Test administrators shall: 

(A) administer tests according to the directions in 
the administration manual and any subsequent 
updates developed by the test publisher; 

(B) administer tests to all eligible students: 

(C) report all testing irregularities to the school 
system test coordinator; and 

(D) provide a positive test-taking climate. 

(4) Proctors shall serve as additional monitors to help the 



14:17 



NORTH CAROLINA REGISTER 



March 1, 2000 



1508 



PROPOSED RULES 



test administrator assure that testing occurs fairly. 

(e) Scoring. The school system test coordinator shall: 

(1) ensure that each test is scored according to the 
procedures and guidelines defined for the test by the 
test publisher; 

(2) maintain quality control during the entire scoring 
process, which consists of handling and editing 
documents, scanning answer documents, and 
producing electronic files and reports. Quality control 
shall address at a minimum accuracy and scoring 
consistency. 

(3) maintain security of tests and data files at all times, 
including: 

(A) protecting the confidentiality of students at all 
times when pubhcizing test results; and 

(B) maintaining test security of answer keys and 
item-specific scoring rubrics. 

(f) Analysis and reporting. Educators shall use test scores 
appropriately. This means that the educator recognizes that a 
test score is only one piece of information and must be 
interpreted together with other scores and indicators. Test data 
help educators understand educational patterns and practices. 
The superintendent shall ensure that school personnel analyze 
and report test data ethically and within the limitations described 
in this paragraph. 

(1) Educators shall release test scores to students, 
parents, legal guardians, teachers, and the media with 
interpretive materials as needed. 

(2) Staff development relating to testing must enable 
personnel to respond knowledgeably to questions 
related to testing, including the tests, scores, scoring 
procedures, and other interpretive materials. 

(3) Items and associated materials on a secure test shall 
not be in the public domain. Only items that are 
within the public domain may be used for item 
analysis. 

(4) Educators shall maintain the confidentiality of 
individual students. Publicizing test scores that 
contain the names of individual students is unethical. 

(5) Data analysis of test scores for decision-making 
purposes shall be based upon: 

(A) dissagregation of data based upon student 
demographics and other collected variables; 

(B) examination of grading practices in relation to 
test scores; and 

(C) examination of growth trends and goal 
summary reports for state-mandated tests. 

(g) Unethical testing practices include, but are not limited to, 
the following practices: 

( 1 ) encouraging students to be absent the day of testing; 

(2) encouraging students not to do their best because of 
the purposes of the test; 

(3) using secure test items or modified secure test items 
for instruction; 

(4) changing student responses at any time; 

(5) interpreting, explaining, or paraphrasing the test 
directions or the test items; 

(6) reclassifying students solely for the purpose of 



avoiding state testing; 

(7) not testing all eligible students; 

(8) failing to provide needed modifications during testing, 
if available; 

(9) modifying scoring programs including answer keys, 
equating files, and lookup tables; 

(10) modifying student records solely for the purpose of 
raising test scores; 

(11) using a single test score to make individual decisions; 
and 

(12) misleading the pubhc concerning the results and 
interpretations of test data. 

{h} In the event of a violation of this Rule, the SBE may 
impose any one or more of the following sanctions: 

(1) withhold ABCs incentive awards from individuals or 
from all eligible staff in a school; 

(2) file a civil action against the person or persons 
responsible for the violation for copyright 
infringement or for any other available cause of 
action; 

(3) seek criminal prosecution of the person or persons 
responsible for the violation; and 

(4) suspend or revoke the professional license of the 
person or persons responsible for the violation. 

Authority G.S. 115C-12(9)c; 115C-81 (b)(4). 

SECTION .0500 - PERFORMANCE APPRAISAL 
SYSTEM 

.0503 STATE GRADUATION REQUIREMENTS 

(a) In order to graduate and receive a high school diploma, 
public school students shall meet the requirements ofparagraph 
(b) and shall attain passing scores on competency tests adopted 
by the SBE and administered by the LEA. Students who satisfy 
all state and local graduation requirements but who fail the 
competency tests shall receive a certificate of achievement and 
transcript and shall be allowed by the LEA to participate in 
graduation exercises. 

( 1 ) The passing score for the competency test, which is 
the same as grade-level proficiency as set forth in 
Rule .0502 of this Subchapter, shall be level 111 or 
higher. 

(2) Special education students may apply in writing to be 
exempted from taking the competency tests. Before it 
approves the request, the LEA must assure that the 
parents, or the child if aged 1 8 or older, understand 
that each student must pass the competency tests to 
receive a high school diploma. 

(3) Any student who has failed to pass the competency 
tests by the end of the last school month of the year in 
which the student's class graduates may receive 
additional remedial instruction and continue to talie 
the competency tests during regularly scheduled 
testing until the student reaches maximum school age. 

(b) In addition to the requirements of Paragraph (a), students 
must successfiilly complete 20 course units in grades 9-12 as 
specified below. 



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PROPOSED RULES 



(ivj 



tv] 



(1) Effective with the class entering ninth grade for the 
first time in the W98=99 2000-2001 school year, the 
2 c o i j j se uni ts m us t i nclude * students shall select one 
of the following three courses of study: 

II. Ill, and IV: career preparation, which shall 

include: 

(i} four credits in English language ^Is^, 
which shall be English 1, 11, III, and IV: 

£ii} three credits in mathematics, one of 
which shall be algebra I (except as 
hmited by OS, 115C-8Ub")): 

(iii) three credits in science, which shall 
include biology, a physical science, and 
earth/environmental science: 
three credits in social studies, which 
shall be Economic. Legal and Political 
Systems (ELPS). U.S. history, and 
world studies: 

one credit in health and physical 
education: 
yi four credits in career/technical 
education, which shall be in a career 
concentration or pathway that leads to a 
specific career field and which shall 
include a second-level (advanced) 
course: 
(vii) two elective credits: and 
(viii) other credits designated by the LEA. 
(B) th ree un its in matli e malics, on e of wliich mu s t 

be Algebra- 1; college technical preparation. 

which shall include: 

(i) four credits in English language arts, 
which shall be English I, II, 111, and IV: 

(ii) three credits in mathematics, which 
shall be either algebra I. geometry, and 
algebra II; or algebra l^ technical 
mathematics L, and technical 
mathematics II: or integrated 
mathematics I. II. and 111: 

(iii) three credits in science, which shall 
include biology, a physical science, and 
earth/environmental science: 

£iy} three credits in social studies, which 
shall be Economic. Legal and Pohtical 
Systems (ELPS). U.S. history, and 
world studies: 

(v) one credit in health and physical 
education. 

(vi) four credits in career/technical 
education, which shall be in a career 
concentration or pathway that leads to a 
specific career field and which shall 
include a second-level (advanced) 
course: 
(vii) two elective credits: and 
(viii) other credits designated by the LEA. 

sociaLstudie s, on e of which mus t 



be in gov er mnen t and e conomics, one in 

United States liistory and one ui world studies; 

college preparation, which shall include: 

(i) four credits in English language arts. 

which shall be English I. II. Ill, and IV: 

three credits in mathematics, which 



tiD 



(iii} 



(iy) 



(V] 

lyil 



shall be algebra I^ algebra IL, and 

geometry or a higher level course for 

which algebra U is a prerequisite: or 

integrated mathematics I. II. and III: 

three credits in science, which shall 

include biology, a physical science, and 

earth/environmental science: 

three credits in social studies, which 

shall be Economic. Legal and Political 

Systems (ELPS). U.S. history, and 

world studies: 

one credit in health and physical 

education: 

six elective credits: and 



other credits designated by the LEA. 
NOTE: For admission into the UNC System it is recommended 
that at least two elective credits be in one second language and 
that one of these credits be taken in the twelfth grade. 

(©) tlu ' ee uni t s in sci e nce, one of wliich mu st be 
biology, on e a physical sci e nce, and e ffect iv e 
widi t li e class e n teri ng nin ti i g r ad e fo r t he 

2000-2001 s c h o o H y e ar, aire 

eartli/ e nviromnen t al sci e nc e ; 

(E) one uni t in p hysical educa t i o n and h e al t h; and 

(F) six uni t s designa te d by tli e Lr EA, wliich m a y be 
undesignated electives or coui'ses designated 
fi"om the standai'd couise of study. 

(2) LEAs may count successfiil completion of course 
work in the ninth grade at a school system which does 
not award course units in the ninth grade toward the 
requirements of this Rule 

(3) LEAs may count successful completion of course 
work in grades 9-12 at a summer school session 
toward the requirements of this Rule. 

(4) LEAs may count successful completion of course 
work in grades 9-12 at an off-campus institution 
toward the requirements of paragraph (b)(1)(F) this 
Rule. 23 NCAC 2C .0305 shall govern enrolhnent in 
community college institutions. 

(c) Effective with the class of 2001, all students must 
demonstrate computer proficiency as a prerequisite for high 
school graduation The passing scores for this proficiency shall 
be 47 on the multiple choice test and 49 on the performance test. 
This assessment shall begin at the eighth grade A student with 
disabilities shall demonstrate proficiency by the use of a 
portfoho if this method is required by the student's lEP. 

(d) Special needs students as defined by G.S. 115C-109, 
excluding gifted and pregnant, who do not meet the 
requirements for a high school diploma shall receive a 
graduation certificate and shall be allowed to participate in 
graduation exercises if they meet the following catena: 

(1) successfiil completion of 20 course units by general 



14:17 



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March 1, 2000 



1510 



PROPOSED RULES 



subject area (4 English, 3 math, 3 science, 3 social studies, 1 
health and physical education, and 6 local electives) under 
Paragraph (b). These students are not required to pass the 
specifically designated courses such as Algebra I, Biology or 
United States history, 

(2) completion of all lEP requirements. 

AuthohtyG.S. U5C-12(9b): 115C-81 (b)(4); N.C. Constitution. 
Article IX, Sec. 5. 



1511 



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14:17 



TEMPORA R Y RULES 



This Section includes temporary rules reviewed by the Codifier of Rules and entered in the North Carolina Administrative 
Code and includes, from time to time, a listing of temporary rules that have expired. See G.S. I50B-21 i and 26 NCAC 2C 
.0500 for adoption and filing requirements. Pursuant to G.S. 150B-2I.l(e), publication of a temporary rule in the North 
Carolina Register serves as a notice of rule-making proceedings unless this notice has been previously published by the 
agency. 



TITLE 2 - DEPARTMENT OF AGRICULTURE 

Rule-making Agency: North Carolina Department of 
Agriculture and Consumer Services 

Rule Citation: 2 NCAC 55 .0101 - .0104; .0201 -.0203; .0301 
- .0303; .0401 - .0403; .0501 - .0503 

Effective Date: February 1, 2000 

Findings Reviewed by Julian Mann III: Approved 

Authority for the rule-making: S.L 1999-463, s.4 

Reason for Proposed Action: The legislative findings in S.L. 
1999-463, the Hurricane Floyd Recovery Act of 1999, document 
the effects of Hurricane Floyd on agriculture and the need for 
immediate assistance due to the impact on the public health, 
safety, and welfare, and are incorporated herein by reference, 
and copy is attached. Section 4 of S.L 1999-463 also provides 
authority for State agencies to adopt temporary rules to 
implement Hurricane Floyd assistance programs. 

Comment Procedures: Written comments may be submitted to 
David S. McLeod, APA Coordinator, North Carolina 
Department of Agriculture and Consumer Services, Legal 
Affairs Office, PO Box 27647, Raleigh, NC 27611. 

CHAPTER 55 - HURRICANE FLOYD RECOVERY 
PROGRAMS FOR AGRICULTURE 

SECTION .0100 - PURPOSE; AVAILABILITY OF 
FUNDS; DEFINITIONS; EXPIRATION 

.0101 PURPOSE 

The purpose of this Chapter is to establish guidelines for the 
implementation of disaster assistance programs for fanners who 
suffered losses as a result of Hurricane Floyd The assistance 
provided under this Chapter is intended to supplement federal 
disaster assistance programs. This program is authonzed by the 
Hurricane Floyd Recovery Act, Session Law 1999-463 of the 
1999 Extra Session of the General Assembly. 

History Note; Authority S.L 1999-463, s. 4; 
Temporary Adoption Eff. February 1, 2000. 

.0102 AVAILABILITY OF FUNDS 

The assistance programs described in this Chapter are subject 
to the availability of funds from the Hurricane Floyd Reser\'e 
Fund in the Office of State Budget and Management, or from 



other sources. This program shall be administered in 
accordance with the Hurricane Floyd Recovery Act and the 
requirements of the Office of State Budget and Management. 

History Note; Authority S.L. 1999-463, s. 4; 
Temporary Adoption Eff. February 1, 2000. 



means the Commissioner of 



.0103 DEFINITIONS 

As used in this Chapter: 

(1) "Commissioner" 
Agriculture. 

(2) "Department" means the Department of Agriculture 
and Consumer Services. 

(3) "Disaster area" means the counties that were declared 
a disaster by the President of the United States as a 
result of Hurricane Floyd. 

(4) "FSA" means the Farm Service Agency of the United 
States Department of Agriculture. 

(5) "USDA" means the United States Department of 
Agriculture. 

History Note; Authority S.L. 1999-463, s. 4; 
Temporary Adoption Eff. February 1, 2000. 

.0104 EXPIRATION 

This Chapter shall expire on December 31. 2000. 

History Note; Authority S.L. 1999-463, s. 4; 
Temporary Adoption Eff. February /, 2000. 

SECTION .0200 - CROP LOSS AND LIVESTOCK LOSS 
ASSISTANCE 

.0201 ELIGIBILITY FOR ASSISTANCE 

A producer who is eligible for crop or livestock disaster 
assistance from USDA-FS A shall be eligible for assistance under 
this program. In addition, a producer who is riot eligible for 
federal assistance may be eligible for assistance under this 



program if he or she has a loss documented by USDA-FSA. A 
"swine operation integrator." as defined in G.S. 143-215. lOH. 
shall not be eligible for livestock loss assistance. 

History Note: Authority S.L. 1999-463, s. 4; 
Temporary Adoption Eff. February 1, 2000. 

.0202 APPLICATION PROCEDURES 

Assistance under this program shall be based on information 
provided to the Department by USDA-FSA. No additional 
application shall be required. 



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March 1, 2000 



1512 



TEMPO RA RY RULES 



History Note: Authority S.L J 999-463, s. 4; 
Temporary Adoption Eff. February 1. 2000. 

.0203 MAXIMUM LEVEL OF ASSISTANCE 

Subject to availability of funds, assistance may be provided in 
amounts not to exceed: 

(1) 1 7 percent of a producer's crop loss as documented by 
USDA-FSA: and 

(2) 30 percent of a producer's livestock loss as 
documented by USDA-FSA. 

History Note: Authority S.L. 1999-463, s. 4; 
Temporary Adoption Eff. February I, 2000. 



A producer vyho is eligible for assistance under the USDA- 
FSA Emergency Conservation Program shall be eligible for the 
cost share buy down assistance program. 

History Note: Authority S.L. J 999-463, s. 4; 
Temporary Adoption Eff. February /, 2000. 

.0402 APPLICATION PROCEDURES 

Assistance under this program shall be based on information 
provided to the Department by USDA-FSA from the producer's 
application for assistance from USDA-FSA under the 



Emergency Conservation Program, 
shall be required. 



No additional application 



SECTION .0300 - STRUCTURES AND EQUIPMENT 
LOSS ASSISTANCE 



History Note: Authority S.L. 1999-463, s. 4; 
Temporary Adoption Eff. February 1, 2000. 



.0301 ELIGIBILITY FOR ASSISTANCE 

A farm owner or operator whose uninsured farm structures, 
farm roads or farm equipment were damaged or destroyed as a 
result of Hurricane Floyd may submit an application for 
assistance under this program to the USDA-FSA county office 
on a form provided by the Department. "Structures" shall not 
include lagoons, as defined in G.S. 106-802. Applications must 
be received in the USDA-FSA county office by March 15. 2000. 

History Note: Authority S.L. 1999-463, s. 4; 
Temporary Adoption Eff. February 1. 2000. 

.0302 APPLICATION PROCEDURES 

Applications shall be forwarded by USDA-FSA to the 
Department. The Department shall determine eligibility for 
assistance based on information provided by the farm owner or 
operator in the application. The application shall include: 

(1) a copy of an invoice or estimate for repairs, not to 
exceed fair market value prior to Hurricane Floyd: or 

(2) in the case of a total loss, a copy of an appraisal of the 
fair market value prior to Hurricane Floyd. 

The invoice, estimate, appraisal or other supporting information 
must have been prepared by a person who is known to be 
competent to prepare such estimates or appraisals and who has 
no financial interest in the applicant's farm operations. 

History Note: Authority S.L. 1999-463, s. 4; 
Temporary Adoption Eff. February 1, 2000. 

.0303 MAXIMUM LEVEL OF ASSISTANCE 

Subject to availability of funds, assistance may be provided in 
amoimts not to exceed 40 percent of uninsured structure or 
equipment loss, or 50 percent of farm road restoration cost. 

History Note: Authority SL. 1999-463. s. 4; 
Temporary Adoption Eff February 1. 2000. 

SECTION .0400 - EMERGENCY CONSERVATION 
PROGRAM COST SHARE BUY DOWN 



.0401 



ELIGIBILITY FOR ASSISTANCE 



.0403 MAXIMUM LEVEL OF ASSISTANCE 

Subject to availability of funds. assistance may be provided in 
amounts not to exceed 1 8 percent of the total cost of the practice 
approved by USDA-FSA. Assistance provided under this 
Section may not be used to repair or rebuild a "lagoon." as 
defined in G.S. 106-802. 

History Note: Authority S.L. 1999-463, s. 4; 
Temporary Adoption Eff. February 1, 2000. 

SECTION .0500 - COMMODITY ASSOCL\TIONS AND 
COOPERATIVES ASSISTANCE 

.0501 APPLICATIONS FOR ASSISTANCE 

Commodity associations and cooperatives may submit an 
application for assistance to the Commissioner of Agriculttire on 
a form provided by the Department. 

History Note: Authority S.L. 1999-463. s. 4; 
Temporary Adoption Eff. February 1. 2000. 

.0502 ELIGIBILITY FOR ASSISTANCE 

A commodity association or cooperarive shall provide 
documentation of losses suffered due to Hurricane Floyd. 

History Note: Authority S.L. 1999-463, s. 4; 
Temporary Adoption Eff. February 1, 2000. 

.0503 LEVEL OF ASSISTANCE 

Subject to availability of funds, the Commissioner of 
Agriculture may provide assistance to commodity associations 
or cooperatives on a eto rata basis for losses suffered due to 
H urricane Floyd. 

History Note: Authority SL. 1999-463, s. 4; 
Temporary' Adoption Eff. February L^ 2000. 



TITLE 4 - DEPARTMENT OF COMMERCE 
Rule-makJng Agency: Department of Commerce 



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14:17 



TEMPORARY RULES 



Rule Citation: 4 NCAC IM .0101-.0107 

Effective Date: February 1, 2000 

Findings Reviewed and approved by: Julian Mann, III 

Authority for the rule-making: S.L. 1999-463 

Reason for Proposed Action: Rules governing loans and 
interest rebates to small businesses damaged by Hurricane 
Floyd 

Comment Procedures: Comments or questions may be 
directed to Gene Byrd, Department of Commerce, 418 Mail 
Service Center, Raleigh, NC 27699-4318, (919) 715-5747. 

CHAPTER 1 - DEPARTMENTAL RULES 

SUBCHAPTER IM - HURRICANE FLOYD BUSINESS 
ASSISTANCE PROGRAMS 



.0102 ELIGIBILITY 

(a) All businesses must apply for a SBA disaster business 
loan to be eligible for these programs. 

(1) Interest rebates will be available to aU business 
owners who borrow from the SBA and will be based 
on the amount of money borrowed and the repayment 
terms. Amounts approved by the SBA and amounts 
actually disbursed by them may differ. Rebates will 
be based on the funds actually disbursed. 

(2) A business owner that exhausts the SBA funding and 
reconsideration process and submits proof of having 
been a legitimate business prior to the disaster will be 
eligible for NC READE flmds. 

(b} Examples of proof include, but are not limited to, 
possession of a valid business hcense. a business plan, and a 
commercial property lease. 

(c) A business must demonstrate the potential to recover from 
the disaster and remain an going concern with the infusion of 
NC READE fimds. 



SECTION .0100 - GENERAL INFORMATION 

.0101 SCOPE 

(a) The Department of Commerce shall operate a program of 
assistance to businesses in order to protect jobs in the disaster- 
damaged counties of eastern North Carolina. 

(b) Interest rebates shall be available to business owners who 
are approved for a disaster business loan from the U. S. Small 
Business Adminisfration (SBA) for physical damage or 
economic injury to their business as a result of Hurricane Floyd. 

(c) A loan program for businesses that do not qualify for SBA 
loans shall be knovro as the NC Recovery and Development 
Fund (NC READE). Loans will be available to businesses for 
both physical damage and economic injury suffered as a result 
of Hurricane Floyd. Loans will be made to businesses that 
suffered damage and have been unable to qualify for a Small 
Business Administration (SBA) disaster business loan. A 
business will be deemed to be unable to qualify for a SBA 
disaster business loans when: 

(1) an initial application for SBA loan has been declined: 
and 

(2) an application for reconsideration by SBA has also 
been declined. 

(d) The business must be located in one of the counties 
declared a major disaster as a result of Hurricane Floyd by the 
President of the United States under the Stafford Act (P. L. 93- 
288). 

(e) Applications will be accepted for six months following the 
final application deadline for SBA business loans for physical 
damage caused by Hurricane Floyd. 

(D NC READE applicants must have contacted a Business 
Recovery Assistance Center b^ the final deadline to start the 
SBA reconsideration process. 

History Note: Authority G.S. 150B-21. 1; S.L 1999-463; 
Temporary Adoption Eff. February I. 2000 to expire on January 
1, 2003 



History Note: Authority G.S. 150B-21. 1; SL. 1999-463; 
Temporary Adoption Eff. February 1, 2000 to expire on January 
1, 2003. 

.0103 BENEFITS UNDER THE INTEREST REBATE 
PROGRAM 

The interest rebate program will offer rebates equal to the 
interest payments projected to be made by the successfiil SBA 
business borrower for the first three years on the finalized SBA 
disaster business loan from damage sustained as a result of 
Hurricane Floyd. 

History Note: Authority G.S. 1508-21. 1; SL. 1999-463; 
Temporary Adoption Eff. February 1, 2000 to expire on January 
1. 2003. 

.0104 BENEFITS UNDER NC READE 

(a) A NC READE loan yyill be for a period of eight years. All 
payments will be deferred for the first three years and the loan 
will accrue no interest during that period. The final five-year 
period will accrue interest at 4% and will amortize the principal 
balance through regular monthly payments of principal and 
interest. There will be no penalty for early repayment. 

(b) Maximum funding under NC READE will be tied to the 
number of jobs provided by the business prior to Hurricane 
Floyd. Regardless of the maximum funding for which the 
business qualifies, fimding will not exceed the actual physical 
damage and economic injury sustained by the business from 
Hurricane Floyd. 

(c) The number of jobs provided by each business will be 
verified by Form NCUl 101 filed by the business with the 
Employment Security Commission of North Carolina (ESC). 

(1) A business that provides 5 jobs will be eligible for 
maximum funding of twenty-five thousand dollars 
($25.000). 

(2) A business that provides 6-10 jobs will be eligible for 
maximum funding of twenty-five thousand dollars 



14:17 



NORTH CAROLINA REGISTER 



March 1, 2000 



1514 



TEMPORA R Y RULES 



Ql 



14} 



£5] 



($25.000), plus four thousand dollars ($4.000) for 
each incremental job. 

A business that provides 1 1-25 jobs will be eligible 
for maximum funding of forty-five thousand dollars 
($45.000). p lus three thousand dollars ($3.000) for 
each incremental job. 

A business that provides 26-100 jobs will be ehgible 
for maximum fimding of ninety thousand dollars 
($90.000). plus two thousand five hundred dollars 
($2.500) for each incremental job. 
A business that provides in excess of 1 00 jobs will be 
eligible for maximum funding of two hundred seventy 
seven thousand, five hundred dollars ($277.500) plus 
two thousand dollars ($2.000) for each incremental 
job. 
(6) The N. C. Department of Commerce will determine 
maximum funding for businesses that provide over 
100 jobs on a case-bv-case basis. 

History Note: Authority G.S. 150B-2I. 1; S.L. 1999-463; 
Temporary Adoption Eff. February 1, 2000 to expire on January 
1. 2003. 

.0105 PROCEDURES FOR INTEREST REBATE 
FOR SBA BORROWERS 

(a) Applicants will apply for interest rebates through the 
Business Recovery Assistance Centers (BRAC ) administered by 
the University of North Carolina (UNO Small Business and 
Technology Development Centers (SBTDC) in cooperation with 
the Department of Commerce. 

(b) The borrower will present to the BRAC Counselor a copy 
of his Loan Authorization and Agreement and a copy of his most 
recent disbursement letter showing the outstanding balance of 
the loan. 

TTie BRAC counselor will perform a mathematical 
calculation to estimate the interest to be paid by the 
borrower over the ensuing three years. 
The borrower will affirm that he is entitled to this 
interest rebate, that the information is true and correct 
to the best of his knowledge and that the rebate will 
not be used to duplicate any benefits received under 
any Federal program. 

Upon completion of the request and supporting 
documents, the BRAC counselor will forward said 

banks 



m 



m 



Oi 



application to one of the two agent 
payment. 



for 



(c) Upon receipt by the bank, the documents will be reviewed 
for completeness, a check will be prepared and mailed to the 
borrower. The bank will forward said check to the borrower 
within five working days of the receipt of the request. 

(d) The borrower will receive a notice with the rebate check 
to inform the recipient that rebate proceeds are subject to federal 
duplication of benefits limitations and that the State of North 
Carolina vyill inform the SBA that the borrower has received the 
rebate. 

History Note: Authority G.S. 150B-21. 1; S.L. 1999-463; 
Temporary Adoption Eff. February I, 2000 to expire on January 



1, 2003. 

.0106 PROCEDURES FOR NC READE 

(a) Applicants will apply for NC READE through the 
Business Recovery Assistance Centers (BRAQ administered by 
the University of North Carolina (UNC) Small Business and 
Technology Development Centers (SBTDC) in cooperation with 
the Department of Commerce. 

(b) The applicant will bring the decline letter fi-om the SBA 
to the Business Recovery Assistance Center. Additionally, the 
applicant should bring a copy of the completed SBA applicadon. 
the most recent pre-Hurricane Floyd NCUI 101 and other 
documentation supporting the situation of the business before 
the hurricane and the extent of damage suffered firom the 
hurricane. 

(c) If the applicant does not have the required information, 
the BRAC will prepare a written request to the SBA for specific 
file items required to make a decision. 

(d) If the SBA. on their first review has declined the 
applicant, the BRAC will assist the applicant to address any 
deficiencies noted by the SBA. The BRAC will ensure re- 
submission of the application. 

(e) Upon resubmission to the SBA. the approved NC READE 
applications will be submitted to agent banks for processing, 
document preparation and fimding. 

(f) Should the SBA approve a loan upon reconsiderafion. the 
borrower will repay the principal amount of the NC READE 
loan. 

History Note: Authority G.S 150B-21.1; S.L. 1999-463; 
Temporary Adoption Eff February 1, 2000 to expire on January 
1. 2003. 

.0107 APPEAL 

An applicant may appeal a fimding decision under these 
programs to the Office of the Assistant Secretary for Economic 
Development. NC Department of Commerce. The Assistant 
Secretary will convene a three-person committee to include 
himself, the Director of the Commerce Finance Division and one 
other member named by the Assistant Secretary. Upon a full 
and complete review of the facts in each case, the committee 
shall recommend a decision to the Secretary of Commerce. The 
decision of the Secretary shall be final. 

History Note: Authority G.S. 1503-21. 1; S.L. 1999-463; 
Temporary Adoption Eff. February 1. 2000 to expire on January 
1. 2003. 



TITLE 15A - DEPARTMENT OF ENVIRONMENT 
AND NATURAL RESOURCES 

Rule-making Agency: NC Department of Environment and 
Natural Resources 

Rule Citation: 15A NCAC IC .0505; IP .0101-.0105; IQ 
.0101 



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March 1, 2000 



14:17 



TEMPORARY RULES 



Effecrive Date: February 4, 2000 

Findings Reviewed and Approved by: Julian Mann, III 

Authority for the rule-making: G.S. JJ3A-4; 113A-6; 113A- 
U; 143B-10: S.L. Extra Session J 999-463. Part IV. c. 463. s. 4 

Reason for Proposed Action: The NC Department of 
Environment and Natural Resources plans to adopt temporary 
rules for the expenditure of funds in relation to the 
Implementation Plan for Use of Hurricane Floyd Relief Funds - 
House Bill 2 (Extra Session 1999) to the following Sections: 
ISA NCAC IC .0505 - The Hurricane Floyd Recovery Act 
applies to activities that are funded with public monies from the 
Hurricane Floyd Reserve Fund and that are taken in response 
to the damage wrought by the hurricanes which occurred in 
North Carolina in September and October of 1999. The 
Department will streamline the breadth and scope of its existing 
SEPA rules to expedite review of activities funded from the 
Fund. 

15A NCAC IP. 0101:0105- Grants to Commercial Fishermen 
for Damages Caused by Hurricanes. To establish the 
application procedures, eligibility requirements, and process 
for disbursement of funds to commercial fishermen for loss of 
income or for damages or loss of equipment. 
15A NCAC IQ.OIOl- Solid Waste Sites and Junkyards Section. 
Establish criteria for remediating high risksolid waste sites and 
junkyards in the 100 year flood plains in areas affected by 
Hurricane Floyd. 

Comment Procedures: 

15 A NCAC IC .0505- Comments are welcomed and may be 

submitted to Ms. Melba McGee. DENR, Division of Legislative 

and Intergovernmental Affairs. 1601 Mail Service Center, 

Raleigh. NC 27699-1601. (919) 715-4194. 

15A NCAC 1P.0101-.0105 - Comments are welcomed and may 

be submitted to Juanita Gaskill, DENR, Division of Marine 

Fisheries. PO Box 769. Morehead City. NC 28557. 

15A NCAC IQ .0101 - Comments are welcomed and may be 

submitted to Mr. Bill Meyer. Director, DENR, Division of Waste 

Management, 1646 Mail Service Center, Raleigh, NC 27699, 

(919) 733-0692. ext. 202. 

CHAPTER 1 - DEPARTMENTAL RULES 

SUBCHAPTER IC - CONFORMITY WITH NORTH 
CAROLINA ENVIRONMENTAL POLICY ACT 

SECTION .0500 - MINIMUM CRITERIA 

,0505 NON-MAJOR HURRICANE RELIEF 
ACTIVITY 

The following minimum criteria are established as indicators 
of thresholds for activities undertaken in response to "The 
Hurricane Floyd Recovery Act of 1999" for which 
envirormiental documentation under the North Carolina 
Environmental Policy Act (NCEPA) is required. Activities 
which are below these thresholds are sufiRcientlv controlled by 



existing statutory and regulatory framework so that no additional 
environmental documentation under NCEPA is required. Asset 
forth in Rule .0503 of this Section, the Secretary may require 
environmental documentation for activities that would otherwise 
quality under these minimum criteria thresholds. These 
Hurricane Floyd Recovery Act minimum criteria apply to 
activities that are funded with public monies from the Hurricane 
Floyd Reserve Fund and that are conducted in response to the 
damage wrought by the hurricanes which occurred in North 
Carolina in September and October of 1999. Except as 
referenced in this Rule, these Hurricane Floyd Recovery Act 
minimum cnteria temporarily replace the minimum criteria in 
Rule .0504 of this Section. Activities and buildings including 
the following require documentation under NCEPA: 

(1) Structures located in the 1 00-year floodplain that are 
not raised above the 100-year flood plain building 
elevation for the site as recommended by FEMA or as 
required by local ordinance, whichever is more 
stringent. 
(2") "Subdivisions." as defined in G.S. 153A-335 and 
160A-376. not served by an approved septic or other 
waste disposal system. 
(3} "Subdivisions," as defined m G.S. 153A-335 and 
160A-376. without 20% open space included in the 
development plan or without a 50-foot or greater 
vegetated buffer along perennial and intermittent 
streams as indicated on the most current version of 
the 1:24.000 scale 17.5 minute quadrangle United 
States Geological Survey topographic map or the 
county soil survey map prepared by the Natural 
Resources Conservation Service of the United States 
Department of Agriculture. 

(4) Expansion of wastewater treatment systems or 
potable water systems in excess of the capacity 
required to serve replacement dwellings, replacement 
commercial structures, and replacement industrial 
facilities for Hurricane Floyd recovery and in excess 
of the activities identified in Rule .0504(3)(a). (3)(b) 
of this Section. 

(5) Filling or otherwise altering wetlands except in the 
replacement of single family dwellings when the 
entire tract of land is wetland and wetland fill is less 
than 1/3 acre and the building site is located so as to 
have the least negative impact foreseeable on the 
wetland. 

(6) Groundwater withdrawals in excess of those 
described in Rule .0504(3)(c ) of this Section. 

(7) Land disturbing activities covering an area greater 
than five acres that require a sediment and erosion 
control plan and are located within a High Quality 
Waters Zone or an Outstanding Resource Waters 
Zone. 

(8) Reforestation of woodlands not in accordance with 
the National Forest Service or the Division of NC. of 
Forest Resources woodlands management plans. 

(9) Use of forestry best management practices not 
consistent with the performance standards in Forest 
Practice Guidelines Related to Water Quality codified 



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1516 



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im 

(12) 
(13) 



(14) 



as 15ANCAC II. 

Removal of logs, stumps, trees, and other debris from 
stream channels in excess of those activities described 
in Rule .0503(3)(m) of this Section. 
Drainage projects where the mean seasonal water 
table elevation vyill be lowered more than one foot 
over an area of one square mile or more, and riparian 
and wetland areas will be permanently effected. 
Development activities within Areas of 
Environmental Concern of the 20-countv coastal area 
which require a CAMA Major or Minor Permit and 
are listed in Rule .0504(f) of this Section. 
Rebuilding in the 100-vear floodplain of any 
component of a liquid animal waste management 
system for which a permit is required under Part 1 or 
Part lA of Article 21 of Chapter 143 of the General 
Statutes, other than a land application site, when the 
total animal waste management system was damaged 
more than 50% of the total cost of new construction. 
Structures 50 years or older for which no separate 
law, rule or regulation dictates a formal review and 
approval process and for which detailed location 
maps have not been provided by the applicant to the 
North Carolina Department of Cultural Resources for 
action by the State's Historic Preservation Officer. 



History Note: Authority G.S.: 1I3A-4; 1 13A-6; 1 13A-1 1; 
143B-10: S.L Extra Session 1999-463, Part IV, c.463, s.; 
Temporary Adaption Eff. February 3. 2000 to expire on January 
1. 2003. 

SUBCHAPTER IP - GRANTS TO COMMERCIAL 
FISHERMEN FOR HURRICANE DAMAGE 

SECTION .0100 - GRANTS TO COMMERCIAL 
FISHERMEN FOR HURRICANE DAMAGE 

.0101 GENERAL 

(a) Only commercial fishermen who held a valid Standard 
Commercial Fishing License. Retired Standard Commercial 
Fishing License or a Shellfish License for North Carolina 
Resident without a Standard Commercial Fishing License during 
September or October. 1999. and are determined by the Division 
of Marine Fisheries to be an affected fishermen in an affected 
fishery are eligible to apply for compensation for 
reimbursement of documented losses of commercial fishing 
income or for damage to or loss of commercial fishing 
equipment. 

(b) Until funds are exhausted, the maximum amount that 
shall be reimbursed any individual fisherman shall be 60 percent 
of the total loss of income and equipment combined. Once the 
total funds are exhausted, applications shall no longer be 
processed or accepted. 

(c) The Division of Marine Fisheries shall determine affected 
fisheries by identifying those fisheries which decreased 33 
percent or more in landings for the months of September and 
October. 1999. as compared to September and October. 1998 
and September and October. 1997. for the same gear type. 



species, and water body, utilizing historical landings data. 

(d) The Division of Marine Fisheries shall determine 
commercial fishing income loss for each affected fishermen who 
applies for a grant ufilizing historical landings data. For each 
affected fishery, the Division of Marine Fisheries shaU calculate 
the loss of income for the months of September and October. 
1999. based on a comparison with the average value of the 
applicant's landings for the months of September and October 
for the years 1997 and 1998. Sixty percent of this total shall be 
granted. 

(e) Based on the information supplied in the grant application 
and information available to the Division through historical 
landings data and existing files, the Fisheries Director or his 
designee shall determine the amount of grant, if any, to be paid 
to an affected fisherman for losses in each affected fishery and 
any eligible compensafion for loss or damage to commercial 
fishing equipment. 

History Note: Authority 1999 S.L. ExtraSession 1999, c. 463; 
Temporary Adoption Effective February £_ 2000 to expire on 
January 1, 2003. 

.0102 DEFINITIONS 

The following terms relating to Grants to Commercial 
Fishermen are hereby defined: 

(1) Commercial fisherman: holders of a valid Standard 
Commercial Fishing License, a Retired Standard 
Commercial Fishing License, or a Shellfish License 
for North Carohna Resident without a Standard 
Commercial Fishing License. This definition shall 
not include assignees. 

(2) Affected fishery: a fishery for which landings for the 
months of September and October. 1999. was 
decreased 33 % or more from the average landings 
for September and October 1998 and September and 
October 1997. for the same gear type, species and 
waterbody. Affected fisheries shall not include 
fisheries with a 33 % or more decrease in 1999 
landings that the Division of Marine Fisheries has 
determined to be due to factors other than the effects 
of hurricanes. Affected fisheries shall also not 
include fisheries where closures or other regulatory 
prohibitions would make landings in that fishery 
illegal except the hard clam fishery and the oyster 
fishery in areas normally designated as non-prohibited 
(non-polluted) which were closed due to hurricanes. 
Fisheries with decreased landings, as compared to the 
average landings during the months of January 
through August for 1997 and 1998. during the months 
of January through August 1999 may not be included 
in affected fisheries. 

(3) Commercial fishing income: the value of the landings 
for the appropriate time frame as determined by the 
Division of Marine Fisheries based on historical 
landings data. 

(4) Affected fisherman: a commercial fisherman who had 
a 25 % or greater total loss in commercial fishing 
income during September and October. 1999. due to 



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effects of the hurricanes, as compared to the 
apphcant's average commercial fishing mcome for 
September and October. 1998 and September and 
October. 1997. utilizing historical landings data: and. 
a 25 % or greater income loss in an affected fishery as 
compared to the applicant's average commercial 
fishing income for that fishery for September and 
October. 1998 and September and October. 1997. 
utilizing historical landings data as determined by the 
Division of Marine Fisheries. 

£5} Value: average September/October 1997/1998 
ex-vessel price of species p er pound as determined by 
the Division of Marine Fisheries utilizing historical 
landings data. 

(6) Commercial fishing equipment: equipment as listed 
on the North Carolina Division of Marine Fisheries 
Trip Tickets with the addition of commercial fishing 
vessels used in an affected fishery in which the 
eligible fisherman participated. 

History Note: Authority 1999 S.L. ExtraSession 1999. c. 463; 
Temporary Adoption Effective February 4, 2000 to expire on 
January 1, 2003. 

.0103 APPLICATION AND ELIGIBILITY REVIEW 
PROCESS 

£a} Applications for Grants to Commercial Fishermen shall be 
available at all offices of the Division of Marine Fisheries which 
are located in Elizabeth City. Wanchese. Columbia. Washington. 
Morehead City and Wilmington, and must be submitted to the 
Morehead City Office of the Division of Marine Fisheries. 
Attention: Hurricane Grants. P.O. Box 769. Morehead City. NC 
28557 for processing. 

£b} Applications must be received at the Morehead City 
Division of Marine Fisheries Office. Attention: Hurricane 
Grants, postmarked no later than May L, 2000. on a form 
provided by the Division of Marine Fisheries The applicant's 
signature on the application must be notarized. 

£c} Incomplete applications shall be returned and shall not be 
reviewed until determined to be complete by the Division of 
Marine Fisheries. 

(d) Apphcants must complete all required information 
including but not limited to: 

(1) For applications in the name of an individual: fiill 
name, physical address, mailing address, county of 
residence, social security number, date of birth. phone 
number and participant number of the applicant. For 
applications in the name of a business entity: full 
name, physical address, mailing address, county of 
residence, social security number, date of birth. and 
phone number of the responsible party and identifying 
information for the business entity as required on the 
application form mcluding the participant number 
and, if applicable, the federal tax identification 
number. 

(2) Standard Commercial Fishing License Number. 
Retired Standard Commercial Fishmg License 
Number, or Shellfish License for North Carolina 



Resident without a Standard Commercial Fishing 
License Number. 

(3) Endorsement to Sell Numbers for License Years 
1997-1998 and 1998-1999. if applicable and 
available. 

(4) Certification as to whether or not the applicant has 
received any other compensation for loss of fisheries 
income or commercial fishing equipment through 
insurance, unemployment. FEMA. Small Business 
Administration or any other disaster program and that 
the loss resulted from the effects of the hurricane. If 
such compensation has been received, the level of 
compensation must be reported and shall be deducted 
from the total eligible compensation under this grant 
program. 

(5) For application for compensation for loss of 
commercial fishing income, the applicant must certifV 
which affected fisheries commercial fishing income 
loss occurred in from the list of affected fisheries 
attached to the application. 

(6) For application for compensation for loss of a 
vessel(s) or equipment used in an affected fishery: 

(A) The fishermen must have been determined to 
be an affected fisherman with a documented 
commercial fishing income loss of five 
hundred dollars ($500.00) or more to be 
eligible to apply for compensation for lost or 
damaged equipment or vesseUs). Involvement 
in an affected fishery and the five hundred 
dollar ($500.00) loss of commercial fishery 
income shall be verified by the Division of 
Marine Fisheries through historical landings 
data. 

(B) For compensation for loss or damage to a 
vessel, the applicant must fiimish copies of the 
Commercial Fishing Vessel Registration, the 
State motorboat registration, or the U.S. Coast 
Guard vessel documentation papers, if 
available. Applicants must furnish 
documentation of the loss or damage to the 
vessel. Such documentation may include 
repair invoices, estimates of damages from a 
repair facility, photographs of the damages. 
Wildlife Resources Commission motorboat 
accident reports, notarized affidavits from 
individuals with knowledge of the loss, or other 
relevant verification of the loss. 

(C) For application for equipment loss or damage. 
the applica nt must furni sh copies of receipts 
for equipment purchased prior to September 
16. 1999. and a notarized affidavit from the 
applicant that equipment has been lost or 
damaged and must furnish at least one 
notarized affidavit from an individual involved 
in commercial fishing or from a fish dealer that 
the a pplicant did own and have damages or 
loss of such equipment. Information require d 
will include the type, description, amount. 



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1518 



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location, and the extent of damage of 
commercial equipment. Only equipment losses 
between September 16 and October 15. 1999. 
shall be considered for compensation. 
Calculation of loss of equipment shall be as 
follows: 

(I) For equipment losses that have been 
replaced, compensation shall be based 
on the actual replacement cost shown on 
receipts or invoices for replacement. 
(ID For equipment losses that have not been 
replaced or for which receipts or 
invoices are not available, compensation 
shall be based on a standard amount set 
by the Division of Marine Fisheries to 
be the fair market replacement cost for 
each type of equipment. 
(7) The applicant must certify that all information on the 
application and any supporting documentation is true, 
accurate, and complete, 
(e) Grants shall be issued according to the order that 
complete applications are received, reviewed and approved. 

History Note: Authority 1999 S.L. Extra Session 1999, c. 463; 
Temporary Adoption Effective February £_ 2000 to expire on 
January 1, 2003. 

.0104 ELIGIBILITY NOTIFICATION - DISPUTE 
PROCESS 

(a) If approved, in whole or in part, apphcants shall be 
notified by letter from the Division of Marine Fisheries of the 
amount for compensation. Actual compensation shall be mailed 
directly to the applicant including the statement of income tax 
Hability required by statute. 

(b) If denied, applicants shall be notified by a copy of the 
eligibility decision by the Division of Marine Fisheries. 

(c) Applicants may dispute the compensation amount for 
commercial fishing income loss by providing trip tickets 
verifying landings in an affected fishery to the Fisheries Director 
postmarked no later than 30 days from the date the 
compensation or eligibility decision is mailed by the Division of 
Marine Fisheries. Based on the bi2 tickets provided, the 
Fisheries Director or his designee may reconsider the 
compensation amount. Additional information may be required 
by the Fisheries Director or his designee. 

(d) Applicants may dispute the compensation amount for 
commercial fishing equipment or the eligibihtv decision 
concerning equipment by providing additional information 
similar to that information described in 15A NCAC IP .0103 if 
not submitted with the original application to the Fisheries 
Director postmarked no later than 30 days from the date the 
compensation or eligibility decision is mailed by the Division of 
Marine Fisheries. Based on the information provided, the 
Fisheries Director or his designee may reconsider the 
compensation amount or eligibility decision. Additional 
information may be required by the Fisheries Director or his 
designee. 

(e) Applicants who receive notification of ineligibility may 



dispute the ehgibility determination for commercial fishing 
income by providing trip rickets verifying landings in an affected 
fishery to the Fisheries Director postmarked no later than 30 
days from the date the eligibility decision is mailed by the 
Division of Marine Fisheries. Based on trip tickets provided, the 
Fisheries Director or his designee may reconsider the ehgibihty 
decision. Additional information may be required by the 
Fisheries Director or his designee. 

History Note: Authority 1999S.L. ExtraSession 1999, c. 463; 
Temporary Adoption Eff. February 4, 2000 to expire on January 
1, 2003. 

.0105 APPEAL PROCESS 

Written appeal of the final eligibility decision by the Fisheries 
Director or his designee may be made to the Secretary of the 
Department of Environment and Natural Resources. The 
decision will be considered final if the apphcant does not submit 
additional information within 30 days of the mailing of the 
initial eligibility decision or compensation. Such appeal must 
include the basis for the appeal and supporting documentation. 
Individuals appealing norification of ineligibihtv or the amount 
of compensation may dispute the eligibihtv determination by 
providing trip tickets verifying landings in an affected fishery or 
additional documentation concerning gear losses to the 
Secretary. Based on the information provided, the Secretary or 
his designee may reconsider the eligibility decision. Additional 
information may be required by the Secretary or his designee. 
Such appeal must be postmarked no later than 30 days from the 
date the ehgibility decision was mailed by the Division of 
Marine Fisheries. 

History Note: Authority 1999 S.L ExtraSession 1999, c. 463; 
Temporary Adoption Effective February £_ 2000 /o expire on 
January 1, 2003. 

SUBCHAPTER IQ - JUNKYARDS AND OTHER HIGH- 
RISK SOLID WASTE SITES 

SECTION .0100 - EVALUATION OF HIGH-RISK 

JUNKYARDS AND OTHER HIGH-RISK SOLID 

WASTE SITES 

.0101 REMEDIATION OF HIGH-RISK JUNKYARDS 
AND SOLID WASTE SITES 

(a) Apphcations submitted to the Department for use of State 
money allocated under Section 3.1(h) of Chapter 463 of the 
1999 Session Laws. (Extra Session. December 16. 1999). for 
remediation of high-risk iunkyards and other high-risk sohd 
waste sites located in the 100-year flood plains of areas affected 
by Hurricane Floyd shall be evaluated in accordance with the 
following criteria. To be eligible for State money, a site shall 
have a positive ranking on all of the criteria. The Department 
shall prioritize the ehgible sites according to the actual or 
potential degree of risk posed by the site to the environment and 
to the public health, safety and welfare, with particular attention 
to impact of the site upon surface water. Sites for which the cost 
of clean-up is deemed to be high due to the presence or release 



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14:17 



TEMPORARY RULES 



of PCB's. dioxin or similar chemicals requiring special handling, 
removal and disposal protocols shall not be eligible for 
remediation under this program. 



(b) Criteria for evaluation of applications for site 
remediation: 

(1) The site is located in a county which sustained severe 
flood damage from Hurricane Floyd, as determined 
by FEMA: 

The site poses substantial environmental and/or 
pubhc health risks and is located in the 1 OO-year flood 
plam: 

The size of the solid waste or junkyard site; 
The toxicity of potential or actual releases to waters 
of the state and the frequency of past releases : (5) 
The proximity of the site to a source of public water 
supply; 

The potential for construction or mitigation of on-site 
wetlands; 

Voluntary participation by site or facility owners and 
operators in assessment and remediation of the site; 



£2} 



13] 
(4} 



£6} 

m 



(8) Commitment of owner(s) of site to enter a 
conservation agreement in the form of an easement, 
pursuant to G.S. 121-35. which forbids junkyards, 
solid waste management facilities, agricultural uses 
and all other uses of the site which may be forbidden 
OT limited under the statute, and commitment to 
provide access easements from public roads to the 
conservation easement ; 

(9) Voluntary participation by the local government to 
accept transfer of restrictive easements located within 
the 1 OO-year flood plain to be managed as open space, 
parks or green ways; and 

(10) If the junkyard or solid waste site is located both 
inside and outside the 1 OO-year flood plain, agreement 
of the ovvTiers and operators to prevent fiiture releases 
to the environment from activities located outside the 
floodplam by adopting a system of Best Management 
Practices as determined by the Department on a site 
specific basis. 

HistoryNote: Authority G.S.: 113A-4; JJ3A-6: 113A-1I: 
143B-10; S.L. Extra Session 1999-463, Part IV, c.463, s. 4; 
Temporary Adoption Eff. February 4, 2000 to expire on January 
1. 2003. 

Rule-making Agency: North Carolina Wildlife Resources 
Commission 

Rule Citarion: ISA NCAC I0F.0333, .0339, .0355 

Effective Date: February 4, 2000 

Findings Reviewed and Approved by: Beecher R. Gray 



Authority for the rule-making: G.S. 75A-3; 75A-I5 

Reason for Proposed Action: 

ISA NCAC 1 OF .0333 - The Lake Wylie Marine Commission 

initiated the no-wake zone pursuant to G.S 7SA-IS, to protect 

public safety in the areas by restricting vessel speed 

ISA NCAC lOF .0339 - The McDowell County Board of 

Commissioners initiated the no-wake zone pursuant to G.S. 

75A-I5, to protect public safety in the areas by restricting 

vessel speed. 

ISA NCAC lOF .03 SS - The Perquimans County Board of 

Commissioners initiated the no-wake zone pursuant to G.S. 

75A-15, to protect public safety in the areas by restricting 

vessel speed. 

Comment Procedures: The North Carolina Wildlife 
Resources Commission has the authority to adopt temporary 
rules pursuant to G.S. I50B-2I.l(al). This temporary rule is 
adopted following the public hearing and public comment 
period established for permanent rule adoption. A public 
hearing was held on November 15, 1999 for the permanent rule 
and the record of hearing for public comment was closed on 
November 19, 1999. The submission for permanent rule is on 
file with the Rules Review Commission. 

CHAPTER 10 - WILDLIFE RESOURCES AND 
WATER SAFETY 



SUBCHAPTER 1 OF 



MOTORBOATS AND WATER 
SAFETY 




SECTION .0300 - LOCAL WATER SAFETY 
REGULATIONS 

.0333 MECKLENBURG AND GASTON COUNTIES 

(a) Regulated Areas. This Rule applies only on tha t po rt io n 
of die to the following waters of Lake Wylie in wliich lies within 
the boundaries o f Mecklenburg and Gaston Coun t i es Counties: 
rtndicatcd-by-F 
rtd-tJtofthis-Rule 
McDowell Park ^ The waters of the coves adjoining 
McDowell Park and the Southwest Nature Preserve in 
Mecklenburg County, including the entrances to the 
coves on either side of Copperhead Island. 

(2) Gaston County Wildlife Club Cove - The waters of 
the cove at the Gaston County Wildlife Club on South 
Point Peninsula in Gaston County. 

(3) Buster Boyd Bridge - The areas 250 feet to the north 
and 150 feet to the south of the Buster Boyd Bridge. 

(4) Highway 27 Bridge ; The area beginning 50 yards 
north of the NC 27 Bridge and e xtending 50 yards 
south of the southernmost of two railroad trestles 
immediately downstream from the NC 27 Bndge. 



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(5) Brown's Cove z The area begjnning at the most 
narrow point of the entrance to Brown?s Cove and 
extending 250 feet in both directions. 

(6] Paradise Point Cove ; The waters of the Paradise 
Point Cove between Paradise Circle and Lakeshore 
Drive as dehneated by appropriate markers. 

(b) Speed Limit Near Ramps. No person shall operate a 
vessel at greater than no-wake speed within 50 yards of any 
public boat-launching ramp in Mecklenburg County. 

(c) Speed Limit Near Piers. No person shall operate a vessel 
at greater than no-wake speed limit within 50 yards of any pier 
operated by Mecklenburg County for pubhc use. 

(d) S pe ed Lim i t at McDowell Park. No person shall o pe r a te 
a v e ssel a t g i'e a ter t han no-wake s pee d o n the wa t ers of th e 
coves adjoining McDow e ll Park and the Sou thw est Na t ui 'e 
Pr e s ei" v e inMe c ld e nbui ' g C o un t y, including t li e e n tr anc e s to t h e 
cov e s on ei t he r sid e o f C oppe rh e ad Island. 

(e) Sp ee d Limit at Ga st on Coun t y Wildhf e Club Cov e . No 
p e r son shall op er a t e a vessel at g i eater tlian no-wake speed on 
t he wate r s of t h e cov e a t the Gas to n Coun t y Wildhfe Club o n 
Soutli Poin t Peninsula in Gas to n Coun t y. 

(f)(d) Speed Limit in Mooring Areas. No person shall 
operate a vessel at greater than no-wake speed while within a 
marked mooring area estabhshed in Mecklenburg County with 
the approval of the Executive Director, or his representative. 

(e) Speed Limit. No person shall operate a vessel at greater 
than no-wake speed within any of the regulated areas described 
in Paragraph (a) of this Rule. 

(g)(f} Restricted Swimming Areas. No person operating a 
vessel shall permit it to enter any marked swimming area 
established in Mecklenburg County with the approval of the 
Executive Director, or his representative. 

(ir)(g) Speed Limit Near Boating Facihties. No person shall 
operate a vessel at greater than no-wake speed within 50 yards 
of any boat launching ramp, dock, pier, marina, boat storage 
structure or boat service area on that part of Lake Wyhe, 
including the South Fork River arm, which is located in Gaston 
County. 



vessel a t g r ea t er than no-wak e 



(i) No p e rson s hall op e ra t e a vessel a t g r ea t er tnan no-v 
speed witliin t he a re a 250 f e e t t o t h e no r th and 150 fe et t o t he 
soutli of the Bu ster Boyd B r idge o n Lake Wyli e . 

(j ) Sp ee d Limi t N e ar I lig l iway 27 B r idg e . No pe r son shall 
ope r at e a v e ssel a t g re a te r t han no-wak e speed begimiing 50 
yards north of th e NC 27 Bridge and e xtendnig 50 yards sou t h 
of t h e soutliermnos t of t wo raih ' oad tr es t les imm e dia te ly 
downs tre am fi-on i ijr e NC 27 Bridge. 

(k)£h) Placement and Maintenance of Markers. The Boards 
of Commissioners of Mecklenburg County and Gaston County 
are designated suitable agencies for placement and maintenance 
of markers implementing this Rule, subject to the approval of 
the United States Coast Guard and the United States Army 
Corps of Engineers. With regard to marking the restricted zones 
indicated in this Rule, all of the supplementary standards hsted 
in Rule .0301(g) of this Section shall apply. 

History Note: Authority G.S. 75A-3; 75A-15; 

Eff. My 1, 1980; 

Amended Eff. July 1. 1994; June 1, 1985; June 1, 1984; March 



1, 1983; 

Temporary Amendment Eff. January 1, 1998; 

Amended Eff. July 1, 1998; 

Temporary Amendment Eff. February 4, 2000. 

.0339 MCDOWELL COUNTY 

(a) Regulated Areas. This Rule applies to the following 
waters located on Lake James in McDowell County: 

(1) that area adjacent to the shoreline of the McDowell 
Wildlife Club property; 

(2) that area adjacent to the shoreline of the Marion 
Moose Club property; 

(3) that area known as Morgan Cove; 

(4) that area within 50 yards of the shoreline at the New 
Manna Baptist Youth Camp; 

(5) that area within 50 yards of the shoreline at Burnett's 
Landing; 

(6) the cove area adjacent to the State Park swimming 
area; 

(7) the cove area adjacent to the State Park picnic area 
and dock; 

(8) that area within 50 yards of camping areas in the Lake 
James State Park as designated by the appropriate 
markers; 

(9) that area within 50 yards of the boat launching ramp 
at the Marion Lake Club; 

(10) that area within 50 yards in either direction from the 
marina docks in Plantation Point Cove; 

(11) that designated area of Goodman's Landing Cove 
within 50 yards of the swimming area and boat docks 
of Goodman's Campgroimd; 

(12) that area beginning at the rock shoals located at 
Deerfield Campground downstream for a distance of 
approximately 200 yards as delineated by appropriate 
markers; 

(13) that area as dehneated by appropriate markers along 
the shorehne of the development known as Lakeview 
Pointe; 

(14) that area as delineated by appropriate markers at 
the Waterglyn Subdivison Cove. Cove; 

(15) that area as delineated by appropriate markers along 
the shoreline of the Lakeview Shores Subdivision. 

(b) Speed Limit. No person shall operate any motorboat or 
vessel at greater than no-wake speed within any of the regulated 
areas described in Paragraph (a) of this Rule. 

(c) Restricted Swimming Areas. No person operating or 
responsible for the operation of any vessel, surfboard or 
waterskis shall permit the same to enter any marked swunming 
area located on the regulated area. 

(d) Placement and Maintenance of Markers. TTie Board of 
Commissioners of McDowell County is designated a suitable 
agency for placement and maintenance of the markers 
implementing this Rule. 

History Note: Authority G.S. 75A-3; 75A-15; 

Eff. August 23. 1981; 

Amended Eff. February 1, 1996; December 1, 1993; March 1, 

1992; April 1, 1991; 



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Temporary AmendmenI Eff. February 1, 1998; 

Amended Eff. July !. 1998: 

Temporary Amendment Eff. February 4. 2000: April J, 1999. 

.0355 PERQUIMANS COUNTY 

(a) Regulated Areas. This Rule applies to the following 
waters: 

(1) Perquimans River: tlie ca nals o f H o li da y Isl a n d; 

(A) The canals of Holiday Island; 

(B) The area within 50 yards of the Hertford City 
Boat Ramp; and 

(C) The area within 75 yards of the Perquimans 
River Bridge on U.S. 17 Business also known 
as the Hertford S-Shaped Bridge. 

(2) Perquimans Riv er: v yitliin 50 y ar ds of tlie H e rtford 
Ci t y B o a t Ram p ; 

(3) Perquimans Riv er: wi t hin 75 y ar ds of the Perquimans 
River Bridg e ou U.S. 17 Bu s iness also kn o wn as t he 
1 l e rtford S-Sha pe d B r idg e ; 

ffl(2) Yeopim River: wit liin 75 y ar ds of t h e Albema r l e 
Planta t ion Maiina Pie r s. 

(A) The area within 75 yards of the Albemarle 
Plantation Marina Piers; 

(B) The area of Beaver Cove as delineated by 
appropriate markers. 

(b) Speed Limit. No person shall operate any motorboat or 
vessel at greater than no-wake speed within the regulated area 
described in Paragraph (a) of this Rule. 

(c) Placement and Maintenance of Markers. The Board of 
Commissioners of Perquimans County is designated a suitable 
agency for placement and maintenance of markers implementing 
this Rule. 

History Note: Authority G.S. 75A-3: 75A-15: 

Eff. November 1, 1988: 

Amended Eff. October 1, 1992. 

Temporary Amendment Eff. October 1, 1997: 

Amended Eff. July 1, 1998: 

Temporary Amendment Eff. February 4, 2000. 

Rule-making Agency: Department of Health and Human 
Services 

Rule Citarion: 15A NCAC 16A . 1301-. 1307 

Effecrive Date: February 10, 2000 

Findings Reviewed and Approved by: Beecher R. Gray 

Authority for the rule-making: G.S. 130A 

Reason for Proposed Action: Cardiovascular disease and 
diabetes are leading causes of death and disability in persons 
over the age of 65, especially those with limited incomes. 
Financial support for the purchase of medications for the 
control of these illnesses is intended to extend the productive 



years and quality of life of such persons, and to reduce costs 
related to unnecessary hospital and nursing home admissions. 

Comment Procedures: Written comments may be submitted to 
Charles D Reed, Pharmacist, North Carolina Division of 
Public Health. 1915 Mail Service Center, Raleigh, NC 27699- 
1915, within 60 days after the date of publication of this issue 
of the North Carolina Register. Copies of the proposed rules 
may be obtained by contacting Charles Reed at 919-715-3338. 

CHAPTER 16 - ADULT HEALTH 

SUBCHAPTER 16A - CHRONIC DISEASE 

SECTION .1300 - PRESCRIPTION DRUG 
ASSISTANCE PROGRAM 

.1301 GENERAL 

The Prescription Drug Assistance Program shall provide 
financial assistance for prescription drug cost to eligible and 
enrolled persons over the age of 65 years and who have been 
diagnosed by a physician as having cardiovascular disease or 
diabetes and require prescription medication to treat one or more 
of these conditions. 

History Note: Authority SL 1999, c. 237, s.ll.l.(a): 
Temporary Adoption Eff. February 10. 2000. 



.1302 DEFINITIONS 

(a) "Cardiovascular disease" 



shall mean diagnoses of 



hypertension, angina, arrhythmia, or heart failure. 

(b) "Diabetes" shall mean diabetes mellitus. 

(cj "Prescription drug" shall mean any drug product required 
by federal or state law to include "Rx only" or "Caution: Federal 
law prohibits dispensing without prescription" upon its label 
prior to dispensing of the product to a patient, or any drug 
required by the North Carolma Medicaid Pharmacy Program to 
be dispensed pursuant to a prescription. 

(d) "Outpatient prescription drug" shall mean any drug 
defined in £c) that is dispensed by a pharmacy which holds a 
valid permit issued by the North Carolina Board of Pharmacy to 
a patient for use outside of a health or medical inpatient facility 
such as a hospital, long-term care facility, or medical chnic. 

History Note: Authority SL. 1999, c. 237, s.ll.l.(a): 
Temporary Adoption Eff. February 10, 2000. 

.1303 FINANCIAL ELIGIBILITY 

Persons who are not eligible for full Medicaid benefits, who 
do not have other insurance coverage for drugs, and whose 
income is not more than 1 50% of the federal poverty level may 
be enrolled in the program. 

History Note: Authority SL 1999. c. 237, s.ll l.fa): 
Temporary Adoption Eff February' 10, 2000. 

.1304 LIMITATIONS 

Notwithstanding any other provision of the rules of this 



J 4: 17 



NORTH CAROLINA REGISTER 



March I, 2000 



1522 



TEMPORARY RULES 



Section, enrollment in the program is subject to the following: 

(1) Until July 1 . 2000. enrollment in the program shall be 
limited to residents of the following 30 North 
Carolina counties: Beaufort. Bertie. Bladen. 
Brunswick. Carteret. Columbus. Craven. Duplin. 
Edgecombe. Greene. Hahfax. Hertford. Hyde. 
Johnston. Jones. Lenoir. Martin. Nash. New Hanover. 
Northampton. Onslow. Pamlico. Pasquotank. Pender. 
Pitt. Robeson. Sampson. Washington. Wayne, and 
Wilson. Thereafter, enrollment in the program shall 
be open to residents of all counties in the State. 

(2) For 30 days from the inception of the program, 
persons receiving Medicaid benefits as Qualified 
Medicare Beneficiaries or Specified Low-Income 
Medicare Beneficiaries shall be given priority 
notification and may be enrolled in the program on a 
first-come first-served basis. Thereafter, enrollment 
in the program will be open to all ehgible persons on 
a first-come first served basis. 

(3) A waiting list of ehgible persons may be established 
by the program. Admission to the hst and subsequent 
enrollment in the Program shall be on a first-come 
first-served basis. 

(4) Enrollment of eligible persons and reimbursement to 
providers shall be subject to the availability of funds. 

History Note: Authority S.L 1999. c. 237, s.ll. J. (a); 
Temporary Adoption Eff. February 10, 2000. 

.1305 APPLICATION PROCESS 

(a) Applications for enrollment shall be submitted on forms 
provided by the Prescription Drug Assistance Program. North 
Carolina Division of Public Health. 1915 Mail Service Center. 
Raleigh. North Carolma 27699-1915. 

(b) Notification of approval or denial of enrollment shall be 
sent to applicants within 30 calendar days of receipt of 
application. 

(c) Benefits shall be effective upon receipt of a program 
identification card by the enrollee. 

(d) All program identification cards and benefits shall expire 
on June 30 of each year. 

(e) In order to continue receiving benefits. enroUees shall 
reapply prior to July 1 of each year on forms provided by the 
Prescription Drug Assistance Program. North Carolina Division 
of Public Health. 1915 Mail Service Center. Raleigh. North 
Carolina 27699-1915. except that persons receiving Medicaid 
benefits as Qualified Medicare Beneficiaries or Specified Low- 
Income Medicare Beneficiaries shall not be required to reapply. 
Applications for enrollment received after July 1 of each year 
will be processed on a first-come first served basis subject to the 
availability of fiinds. 

History Note: Authority S.L. 1999, c. 237, s.ll.l.(a); 
Temporary' Adoption Eff. February 10, 2000 . 

.1306 COVERED SERVICES 

The Prescription Drug Assistance Program shall provide 
financial assistance for prescription drug cost on behalf of 



enrollees as follows: 

(1) Outparient prescription drugs for the treatment of 
hypertension, angina, arrhythmia, heart failure, and 
diabetes mellitus shall be authorized and shall be 
supplied in quantities: 

(a) not to exceed a 100 day supply, and 

(b) consistent with the prescriber's instructions for 
use. 

£2} Each prescription order dispensed to the enrollee shall 
be subject to a co-payment of six dollars ($6.00). 
payable by the enroUee to the pharmacy provider, for 
quanrities up to a 100 day supply. 

(3) A prescription drug prescribed by a brand or trade 
name for which one or more generically- equivalent 
drugs are available shall be considered to be an order 
for the drug by its generic name, except when the 
prescriber personally indicates in his or her own 
handwriting on the prescription order. "Brand 
Medically Necessary" or "Dispense as Written." 

History Note: Authority S.L. 1999, c. 237, s.ll.l.(a); 
Temporary Adoption Eff. February 10, 2000 . 

.1307 REIMBURSEMENT 

(a) Reimbursement for outpatient prescription drugs 
dispensed to enrollees shall be made to the pharmacy provider 
of service at a rate not to exceed the lesser of 

(1) the applicable North Carolina Medicaid Pharmacy 
Program reimbursement rate, or 

(2) the pharmacy provider's usual and customary charge. 

(b) Claims for reimbursement shall be submitted in the 
manner required by the Prescription Drug Assistance Program 
and any person or entity engaged in the processing of claims on 
behalf of the Program. 

History Note: Authority S.L. 1999, c. 237, s.ll.l.(a); 
Temporary Adoption Eff. February 10, 2000. 



TITLE 21- OCCUPATIONAL LICENSING BOARDS 

CHAPTER 14 - BOARD OF COSMETIC ART 
EXAMINERS 

Rule-making Agency: NC State Board of Cosmetic Arts 
Examiners 

Rule Citation: 21 NCAC 141 .0104. .0106: 140 .0105. 

Effective Date: February 10, 2000 

Findings Reviewed and Approved by: Beecher R. Gray 

Authority for the rule-making: G.S. 88B 

Reason for Proposed Action: 21 NCAC 141 .0104 - If a 

student enrolls in a cosmetic art program and attends two days 



1523 



NORTH CAROLINA REGISTER 



March 1, 2000 



14:17 



TEMPORARY RULES 



and does not return, at this time the student is given credit for 
16 hours of classroom time. If the student does not enroll in 
another school, then the Board has to hold these hours for 5 
years. With this Rule, it will decrease our paperwork and also 
the beauty school does not have to show a dropout on their 
records with the U.S. Board of Education which affects their 
status and federal funding. 

21 NCAC 141. 0106 -This Rule was amended when 88B-19was 
ratified decreasing from ten to five years the length of time a 
student may get credit for their hours earned in a beauty school 
if they do not graduate. With the passage of Senate Bill 29, it 
gives us the authority to adopt rules for beauty schools. This 
Rule needs to be amended to reflect the decrease in time. 
21 NCAC 140 .0105 - With the passage of Senate Bill 29, 
(giving us the authority to adopt rules for beauty schools) we 
now have the authority to implement this Rule. Esthetic courses 
have already begun in out beauty schools. This identification 
pin distinguishes which students are taking esthetics. 

Comment Procedures: Written comments concerning this rule- 
making action must be submitted to Dee Williams, Rule-Making 
Coordinator, NC State Board of Cosmetic Art Examiners, 1201- 
110 Front St., Raleigh, NC 27609. 

SUBCHAPTER 141 - OPERATIONS OF SCHOOLS OF 
COSMETIC ART 

SECTION .0100 - RECORD KEEPING 

The text in bold has been approved by Rules Review 
Commission and is waiting for the 2000 Legislative Session. 



(2) Social Security number, 

(3) the last date of attendance, 

(4) the reason for withdrawal (if known), 

(5) the hours completed at the time of withdrawal, and 

(6) copy of all live model/ mannequin performances 
completed at the time of withdrawal. 

(c) A student may elect to withdraw from a cosmetic art 
program up to 5 school days fi'om the first date of attendance. 
Hours earned during the time period prior to withdrawal vyill not 
be credited. 

History Note: Authority G.S 88-23; 88-30; 

Eff. February 1, 1976; 

Amended Effi August 1, 1998; April 1, 1991; January 1, 1989; 

April 1, 1988; 

Temporary A mendment Eff. February 10, 2000. 

.0106 STUDENT DAILY RECORDS 

All daily records kept by a cosmetic art school on a student 
must be kept in the school's permanent files for fiiture reference 
until the date the student is accepted for the state board 
examination or ten five years (effective November L, 1998) after 
the date the student first enrolled in the school, whichever 
occurs earlier. 

History Note: Authority G.S 88B-4(7a); 

Eff. February 1, 1976; 

Amended Eff. April I, 1991; January 1, 1989; April 1, 1988; 

Temporary Amendment Eff. February 10, 2000. 

SUBCHAPTER 140 - ESTHETHICLVN CURRICULUM 



.0104 WITHDRAWALS 

(a) When a student who is enrolled in a cosmetic art school 
withdraws from such school, whether by reason of transfer to 
another school, dismissal, suspension, voluntary disenrollment, 
or for any reason other than graduation, a r epo r t th ereof shall 
be fo r warded lu the Board within 30 working days of 
withdrawal; the cosmetic art school shall report the 
withdrawal to the Board within 30 working days. 

(b) Such report shall contain the following: 
( 1 ) name of the student. 



.0105 IDENTIFICATION PINS 

Each student enrolled for an esthetics course only shall where 
a pin stating "Esthetics". The lettering on a pin must be easily 
read and in large print. 

History Note: Authority G.S 88B-4; 
Temporary Adoption Eff January 1, 1999; 
Temporary Adoption Expired October 12, 1999; 
Temporary Adoption Eff. February 10. 2000. 



14:17 



NORTH CAROLINA REGISTER 



March 1, 2000 



1524 



APPROVED RULES 



This Section includes the Register Notice citation to Rules approved by the Rules Review Commission (RRC) at its meeting 
of November 17, 1999 and December 20, 1999 pursuant to G.S. 150B-21. 1 7(a)(1) and reported to the Joint Legislative 
Administrative Procedure Oversight Committee pursuant to G.S. 150B-21.16. The full text of rules are published below when 
the rules have been approved by RRC in a form different from that originally noticed in the Register or when no notice was 
required to be published in the Register. The rules published in full text are identified by an * in the listing of approved rules. 
Statutory Reference: G.S. 150B-21.17. 

These rules, unless otherwise noted, will become effective on the 3 1st legislative day of the 2000 Session of the General 
Assembly or a later date if specified by the agency unless a bill is introduced before the 31st legislative day that specifically 
disapproves the rule. If a bill to disapprove a rule is not ratified, the rule will become effective either on the day the bil 
receives an unfavorable final action or the day the General Assembly adjourns. Statutory reference: G.S. 1508-21. 3. 



APPROVED RULE CITATION 



REGISTER CITATION TO THE 
NOTICE OF TEXT 



4 


NCAC 


15 


.0119* 


10 


NCAC 


3R 


.0111* 


10 


NCAC 


3R 


.6234* 


10 


NCAC 


3S 


.0108-0109 


10 


NCAC 


3S 


.0207-.0211 


10 


NCAC 


3S 


.0213-.0214 


10 


NCAC 


3S 


.0307-0308 


10 


NCAC 


3S 


.0407-.0408 


10 


NCAC 


3S 


.0506-.0511 


10 


NCAC 


3S 


.0614-.0619 


10 


NCAC 


3S 


.0706-.0707 


10 


NCAC 


3S 


.0806-.0808 


10 


NCAC 


3S 


.0901 -.0904 


10 


NCAC 


3S 


.1001-.1006 


10 


NCAC 


3S 


.1101* 


10 


NCAC 


3S 


.1201* 


10 


NCAC 


3S 


.1202 


10 


NCAC 


3S 


.1203-.1205* 


10 


NCAC 


3S 


.1206 


10 


NCAC 


3S 


.1301* 


10 


NCAC 


3S 


.1302 


10 


NCAC 


3S 


.1303* 


10 


NCAC 


3S 


.1401* 


10 


NCAC 


3S 


.1501 


10 


NCAC 


3S 


.1601* 


10 


NCAC 


3S 


.1701-.1702 


10 


NCAC 


3S 


.1801 


10 


NCAC 


3S 


.1802-.1803* 


10 


NCAC 


3S 


.1804 


10 


NCAC 


3S 


.1805-. 1806* 


10 


NCAC 


3S 


.1901-.1903 


10 


NCAC 


3S 


.2001* 


10 


NCAC 


3S 


.2002 


10 


NCAC 


3S 


.2101 


10 


NCAC 


3S 


.2102* 


10 


NCAC 


3S 


.2103-.2106 


10 


NCAC 


3U 


.2501-.2502* 


10 


NCAC 


3U 


.2804* 


10 


NCAC 


3U 


.2811* 


10 


NCAC 


20B 


.0224* 


10 


NCAC 


20B 


.0228 


15A 


NCAC 


IJ 


.0101 



14:07 NCR 001 

not required G.S. 150B-2 1.5(A)(4) Eff. January 1, 2000 

14:03 NCR 152 

14:05 NCR 375 

14:05 NCR 376 

14:05 NCR 377 

14:05 NCR 378 

14:05 NCR 379 

14:05 NCR 380 

14:05 NCR 381 

14:05 NCR 382 

14:05 NCR 383 

14:05 NCR 383 

14:05 NCR 383 

14:05 NCR 383 

14:05 NCR 384 

14:05 NCR 384 

14:05 NCR 385 

14:05 NCR 386 

14:05 NCR 386 

14:05 NCR 386 

14:05 NCR 387 

14:05 NCR 387 

14:05 NCR 387 

14:05 NCR 387 

14:05 NCR 388 

14:05 NCR 388 

14:05 NCR 389 

14:05 NCR 389 

14:05 NCR 389 

14:05 NCR 390 

14:05 NCR 390 

14:05 NCR 391 

14:05 NCR 391 

14:05 NCR 391 

14:05 NCR 391 

14:03 NCR 157 

14:03 NCR 158 

14:03 NCR 161 

14:05 NCR 392 

14:05 NCR 393 

13:22 NCR 1827 



1525 



NORTH CAROLINA REGISTER 



March 1, 2000 



14:17 



APPROVED RULES 



15A 


NCAC 


IJ 


.0102* 


15A 


NCAC 


IJ 


.0202* 


15A 


NCAC 


IJ 


.0303* 


15A 


NCAC 


IJ 


.0502 


15A 


NCAC 


IJ 


.0601 


15A 


NCAC 


IJ 


.0703 


15A 


NCAC 


IJ 


.0803 


15A 


NCAC 


IJ 


.0904* 


15A 


NCAC 


IL 


.0101 


15A 


NCAC 


IL 


.0102* 


15A 


NCAC 


IL 


.0203 


15A 


NCAC 


IL 


.0303 


15A 


NCAC 


IL 


.0501 


15A 


NCAC 


IL 


.0601 


15A 


NCAC 


IL 


.0801* 


15A 


NCAC 


IL 


.0902* 


15A 


NCAC 


IL 


.1004* 


15A 


NCAC 


2D 


.0541* 


15A 


NCAC 


2D 


.1801-.1802* 


15A 


NCAC 


3H 


.0101 


15A 


NCAC 


3H 


.0103 


15A 


NCAC 


31 


.0101* 


15A 


NCAC 


31 


.0105* 


15A 


NCAC 


31 


.0114* 


15A 


NCAC 


31 


.0117 


15A 


NCAC 


31 


.0120 


15A 


NCAC 


3J 


.0104* 


15A 


NCAC 


3J 


.0110* 


15A 


NCAC 


3J 


.0301-.0302* 


15A 


NCAC 


3J 


.0305* 


15A 


NCAC 


3K 


.0101* 


15A 


NCAC 


3K 


.0105-.0106* 


15A 


NCAC 


3K 


.0202* 


15A 


NCAC 


3K 


.0502 


15A 


NCAC 


3L 


.0201* 


15A 


NCAC 


3L 


.0206 


15A 


NCAC 


3M 


.0202 


15A 


NCAC 


3M 


.0503-.0504 


15A 


NCAC 


3M 


.0507 


15A 


NCAC 


3M 


.0511 


15A 


NCAC 


3M 


.0516 


15A 


NCAC 


30 


.0102 


15A 


NCAC 


30 


.0103-.0104* 


15A 


NCAC 


30 


.0105 


15A 


NCAC 


30 


0106* 


15A 


NCAC 


30 


.0107 


15A 


NCAC 


30 


.0108-.0109* 


15A 


NCAC 


30 


.0110 


15A 


NCAC 


30 


.0111* 


15A 


NCAC 


30 


.0201* 


15A 


NCAC 


30 


.0301 


15A 


NCAC 


30 


.0302-.0303* 


15A 


NCAC 


30 


.0304-,0310 


15A 


NCAC 


30 


.0401-0403* 


15A 


NCAC 


30 


.0405 


15A 


NCAC 


30 


.0406* 


J5A 


NCAC 


7H 


.0201* 


15A 


NCAC 


7H 


.0203 



13:22 NCR 1828 

13:22 NCR 1829 

13:22 NCR 1829 

13:22 NCR 1830 

13:22 NCR 1831 

13:22 NCR 1834 

13:22 NCR 1834 

13:22 NCR 1835 

13:22 NCR 1835 

13:22 NCR 1835 

13:22 NCR 18,36 

13.22 NCR 1836 

13:22 NCR 1837 

13:22 NCR 1838 

13:22 NCR 1840 

13:22 NCR 1841 

13:22 NCR 1842 

14:03 NCR 188 

14:03 NCR 224 

14:06 NCR 444 

14:06 NCR 444 

14:06 NCR 444 

14:06 NCR 447 

14:06 NCR 448 

not required G.S. 150B-21.5 

14:06 NCR 448 

14:06 NCR 449 

14:06 NCR 450 

14:06 NCR 450 

14:06 NCR 451 

14:06 NCR 451 

14:06 NCR 452 

14:06 NCR 452 

14:06 NCR 453 

14:06 NCR 453 

14:06 NCR 453 

14:06 NCR 001 

14:06 NCR 454 

14:06 NCR 456 

14:06 NCR 456 

14:06 NCR 457 

14:06 NCR 459 

14:06 NCR 460 

14:06 NCR 460 

14:06 NCR 460 

14:06 NCR 461 

14:06 NCR 461 

14:06 NCR 463 

14:06 NCR 463 

14:06 NCR 463 

14:06 NCR 464 

14:06 NCR 464 

14:06 NCR 466 

14:06 NCR 466 

14:06 NCR 468 

14:06 NCR 468 

13:23 NCR 1938 

13:23 NCR 1938 



Eff. January 1,2000 



14:17 



NORTH CAROLINA REGISTER 



March 1, 2000 



1526 



APPROVED RULES 



15A 


NCAC 


7H 


.1301* 


15A 


NCAC 


7H 


.1601* 


15A 


NCAC 


7H 


.1901* 


15A 


NCAC 


7H 


.2301 


15A 


NCAC 


7K 


.0203* 


15A 


NCAC 


7K 


.0209* 


15A 


NCAC 


18C 


.0301 


15A 


NCAC 


18C 


.0302-.0303* 


15A 


NCAC 


18C 


.0304 


15A 


NCAC 


18C 


.0305* 


15A 


NCAC 


18C 


.0306 


15A 


NCAC 


18C 


.0307* 


15A 


NCAC 


18C 


.0308 


15A 


NCAC 


18C 


.0309* 


15A 


NCAC 


18C 


.1304* 


21 


NCAC 


46 


.1814* 


21 


NCAC 


46 


.1816 


24 


NCAC 


IH 


.0103* 



13:23 
13:23 
13:23 
13:23 
13:23 
13:23 
14:03 
14:03 
14:03 
14:03 
14:03 
14:03 
14:03 
14:03 
14:03 
14:06 
14:06 
14:02 



NCR 1940 
NCR 1940 
NCR 1940 
NCR 1940 
NCR 1940 
NCR 1940 
NCR 248 
NCR 248 
NCR 249 
NCR 249 
NCR 250 
NCR 250 
NCR 253 
NCR 254 
NCR 254 
NCR 481 
NCR 482 
NCR 82 



TITLE 4 - DEPARTMENT OF COMMERCE 



SECTION .0100 - GENERAL INFORMATION 



CHAPTER 15 - COMMISSION OF NAVIGATION AND 
PILOTAGE FOR THE CAPE FEAR RFVER AND BAR 

.0119 NUMBER OF PILOTS 

(a) The maintenance of efficient pilot service for the river 
and bar requires a number of pilots in accordance with the 
following: The commission shall license a number of pilots not 
to exceed one pilot per 98 piloted vessel arrivals annually or 
fraction thereof Piloted vessel arrivals annually shall be 
determined by a five consecutive calendar year average and can 
be calculated at any time using the five previous calendar years. 
The then current active pilots shall continue to serve with the 
Commission's power of reduction to be effective only in the 
case of natural attrition except as provided in G.S. 76A-15. 

(b) The apprentice system estabhshed in Rule .0121 of this 
Chapter shall be used to fill vacancies in the pilotage service 
except in the case of extreme emergency, such as incapacity by 
accident, sickness or death. In such emergency, the Commission 
may issue, upon recommendation of a majority vote of the 
association, one or more limited licenses for such term as may 
be necessary. 

Authority G.S. 76A-I; 76A-5; 76A-13: 76A-N; 
Eff. August 1, 2000. 



TITLE 10 - DEPARTMENT OF HEALTH AND 
HUMAN SERVICES 

CHAPTER 3 - FACILITY SERVICES 

SUBCHAPTER 3R - CERTIFICATE OF NEED 
REGULATIONS 



.0111 LOCATION OF THE AGENCY 

As used in this Subchapter, the agency is the Certificate of 
Need Section in the Division of Facihty Services, North Carolina 
Department of Human Resources. The location of the agency 
is 701 Barbour Drive, Raleigh, North Carolina, 27603. The 
mailing address of the agency is Certificate of Need Section, 
Division of Facility Services, 2704 Mail Service Center, Raleigh, 
NC 27699-2704. The telephone number of the agency is 
919-733-6360. 

Histoty Note: Authority G.S. 131E-1 77; 
Eff. November 1. 1996; 
Amended Eff. January 1, 2000. 

SECTION .6200 - PLANNING POLICIES AND NEED 
DETERMINATIONS FOR 1999 

.6234 POLICY FOR NURSING CARE BEDS IN 
CONTINUING CARE FACILITIES 

(a) Qualified continuing care facilities may include fi^om the 
outset, or add or convert bed capacity for long-term nursing care 
without regard to the bed need shown in 10 NCAC 3R .6222. 
To qualify for such exemption, applications for certificates of 
need shall show that the proposed long-term nursing bed 
capacity: 

(1) Will only be developed concurrently with, or 

subsequent to construction on the same site, of 

facihties for both of the following levels of care: 

(A) independent living accommodations 

(apartments and homes) for persons who are 

able to carry out normal activities of daily 

living without assistance; such 

accommodations may be in the form of 

apartments, flats, houses, cottages, and rooms; 



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(B) licensed adult care home beds for use by 

persons who, because of age or disabihty (8) 

requu-e some personal services, incidental 
medical services, and room and board to assure 
their safety and comfort. (9) 

(2) Will be used exclusively to meet the needs of persons (10) 
with whom the facility has continuing care contracts 

(in compliance with the Department of Insurance 
statutes and rules) who have lived in a non-nursing 
unit of the continuing care facility for a penod of at (11) 

least 30 days Exceptions shall be allowed when one 
spouse or sibhng is admitted to the nursing unit at the 
time the other spouse or sibling moves into a non- 
nursing unit, or when the medical condition requiring 
nursing care was not known to exist or be imminent (12) 

when the individual became a party to the continuing 
care contract. 

(3) Reflects the number of beds required to meet the 
current or projected needs of residents with whom the 
facility has an agreement to provide continuing care, 
after making use of all feasible alternatives to 
institutional nursing care. 

(4) Will not be certified for participation in the Medicaid 
program. 

(b) One half of the long-term nursing beds developed under 
this exemption shall be excluded from the inventory used to 
project bed need for the general population. Certificates of need 
awarded pursuant to the provisions of Chapter 920, Session 
Laws 1983, or Chapter 445, Session Laws 1985 shall not be 
amended. 

Authority G.S. 131E-176(25); 131E-177(1); I3lE-183(b): 
Eff. August I, 2000. 

SUBCHAPTER 3S - CERTIFICATION OF CARDUC 
REHABILITATION PROGRAMS 

SECTION .1100 - GENERAL INFORMATION: 
DEFINITIONS 

.1101 DEFINITIONS 

The following definitions shall apply throughout this 
Subchapter: 

(1) "ACLS-trained" means training that is current in 
Advanced Cardiac Life Support, by the American 
Heart Association and who has appropriate licensure 
to administer advanced cardiac life support. 

(2) "ACSM" means the American College of Sports 
Medicine. 

(3) "Article" means Article 8 of G.S. 13 IE. 

(4) "Cardiac Rehabilitation Program" has the same 
meaning as the definition in the Article. 

(5) "Certification" has the same meaning as the definition 
in the Article. 

(6) "DVRS" means the Division of Vocational 
Rehabilitation Services, North Carolina Department (20) 
of Health and Hioman Services. 

(7) "Department" means the North Carohna Department 



(13) 

(14) 
(15) 

(16) 



(17) 
(18) 
(19) 



of Health and Human Services. 

"Division" means the Division of Facility Services, 

North Carolma Department of Health and Human 

Services. 

"ECG" means electrocardiogram. 

"Graded exercise test" (GXT) means a multistage test 

that determines a person's physiological response to 

different intensities of exercise or the person's peak 

aerobic capacity. 

"Maximal oxygen consumption" means the highest 

rate of oxygen transport and oxygen use that can be 

achieved at a person's maximal physical exertion, or 

fiinchonal capacity. This is usually expressed in 

METs. 

"MET" means "metabolic equivalent," a measure of 

flmctional capacity, or maximal oxygen consumption. 

One MET represents the approximate rate of oxygen 

consumption by a seated individual at rest: 

approximately 3.5 miykg/min. METs during exercise 

are determined by dividing metabolic rate during 

exercise by the metabolic rate at rest. 

"Nurse Practitioner" means a currently hcensed 

registered nurse approved by the NC Board of 

Nursing and NC Medical Board to practice medicine 

as a nurse practitioner under the supervision of a 

physician licensed by the Board. 

"Owner" means the legal owner of the certified 

cardiac rehabilitation program. 

"Physician" means an individual who is Hcensed 

according to G.S. 90, Article 1, by the NC Medical 

Board to practice medicine. 

"Physician Assistant" means an individual who is 

hcensed and registered according to G.S. 90, Article 

1, by the NC Medical Board to practice medicine 

under the supervision of a physician licensed by the 

Board. 

"Premises" means "site." 

"Program" means"Cardiac Rehabilitation Program." 

"Risk stratification model" means a method of 

categorizing patients according to their risk of acute 

cardiovascular complications during exercise as well 

as their overall prognosis. Risk status is related 

primarily to the type and severity of cardiovascular 

disease. This rating takes into account how well the 

heart pumps, the presence of heart pain symptoms 

andyor changes in the electrocardiogram during 

exercise. Guidelines concerning medical supervision 

of patients in cardiac rehabilitation programs which 

are based on risk stratification models are provided 

by: the American College of Cardiology, the 

American College of Physicians, the American 

Association of Cardiovascular and Pulmonary 

Rehabilitation, the American Heart Association, and 

the North Carohna Cardiopulmonary Rehabilitation 

Association. 

"Simple spirometry" means an analysis of air flow 

which provides information as to the degree and 

severity of airway obstruction, and serves as an index 



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APPROVED RULES 



of dynamic lung function. It must include, at a 
minimum, Forced Vital Capacity and Forced 
Expiratory Volume in 1 second. 

(21) "Site" means the facility in which the cardiac 
rehabilitation program is held. 

(22) "Supervising physician" means a physician who is on- 
site during the operation of the cardiac rehabihtation 
program. 

(23) "Symptom-limited heart rate reserve" means the 
difference between the symptom-limited maximal 
heart rate and the resting heart rate. 

(24) "Vocational Questiormaire" means the document used 
for vocational assessment. 

(25) "Vocational Rehabilitation Counselor" means an 
individual who provides vocational rehabilitation 
counseling services. 



reasonably reliable means of notification, of such expected or 
completed occurrence, and written notification shall follow 
immediately thereafter. 

(c) Upon the occurrences enumerated in Subparagraphs 
(a)(1), (2), and (3) of this Rule, the owner of the program shall 
file with the Department an application for certification, which, 
at a minimum, shall contain the information specified in Rule 
.1202(b) of this Subchapter, and shall provide such other 
documentation and information as requested by the Department. 

(d) The revised program shall be evaluated for compliance 
with the provisions of the Article and this Section. Evaluation 
may be based upon inspection of the program or upon review of 
requested information submitted by a program to the 
Department. After a determination by the Department that the 
program substantially complies with the provisions of the Article 
and this Subchapter, a new certificate shall be issued. 



Authority G.S. 131E-169; 
Eff. July y, 2000. 

SECTION .1200 - CERTIFICATION 

.1201 CERTIFICATE 

The named person(s) and the street address of the named 
premises shall appear on the certificate. 

Authority G.S. BlE-169; 
Eff. July 1, 2000. 

.1203 CERTIFICATE RENEWAL 

(a) A certificate issued pursuant to the Article and this 
Subchapter shall expire two years after the effective date but can 
be renewed upon the successful re-evaluation of the program. 
To initiate the renewal process, an application for certification 
shall be filed with the Department by the owner of the program. 

(b) Determination of comphance with the provisions of the 
Article and this Subchapter for purposes of certificate renewal 
may, at the discretion of the Department, be based upon an 
inspection or upon review of requested information submitted by 
a program to the Department. 

Authority G.S. 131E-167: 131E-169; 
Eff. July 1, 2000. 

.1204 CERTIFICATION FOLLOWING PROGRAM 
CHANGES 

(a) The Department shall be notified, in writing, at least 30 
days prior to the effective date, of any expected occurrences of 
the following: 

( 1 ) change m program ownership; 

(2) change in program name; 

(3) change of the premises in which a program is 
conducted; and 

(4) the replacement or termination of employment of the 
program director. 

(b) If a 30-day advanced written notification of any 
occurrence enumerated in Paragraph (a) of this Rule is not 
possible, the Department shall be notified immediately, by any 



Authority G.S. BlE-169; 
Eff. July 1, 2000. 

.1205 INSPECTIONS 

(a) In accordance with G.S. 13 IE-167(c), inspection(s) shall 
be made by the Department before a program is issued its initial 
certification as a program defined in the Article. 

(b) The Department shall make or cause to be made such 
other inspections of a program as it deems necessary in 
accordance with the Article. Circumstances which may be 
deemed to necessitate an inspection include, but are not limited 
to: 

(1) change in program ownership; 

(2) change in program name; 

(3) change of the premises in which a program is 
conducted; 

(4) the replacement or termination of emplojinent of the 
program director; and 

(5) investigation of complaints. 

(c) Inspections shall be announced or unannounced and may 
be conducted any time during program business hours. The 
purpose of any inspection shall be discussed with the Program 
Director or designee during an entrance conference. 

(d) Information deemed necessary by the Department to 
evaluate compliance with the Article and this Subchapter, shall 
be made available for inspection. The information may include 
medical records, personnel files, policies and procedures, 
program records, interviews with program staff interviews with 
patients, observation of the program in operation, and any other 
information necessary to determine compliance. 

(e) Following completion of an inspection, an exit conference 
shall be conducted with one or more representatives of the 
program's management. An oral summary of the findings shall 
be presented at the exit conference. The Department shall 
provide the program with a written report of the findings. The 
program shall have 10 working days from the receipt of the 
report to respond with a plan of correction which describes the 
corrective actions planned and taken to correct any cited 
deficiency(ies), the date each deficiency was or will be 
corrected, and the date the program expects to be in compliance 
with the provisions of the .Article and this Subchapter. 



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Authority G.S. I31E-169; 13 IE- 170; 
Ejf. July 1. 2000. 

SECTION .1300 - ADMINISTRATION 

.1301 STAFF REQUIREMENTS AND 
RESPONSIBILITIES 

(a) Each program shall be conducted utilizing an 
interdisciplinary team composed of a program director, medical 
director, nurse, exercise specialist, mental health professional, 
dietician or nutritiomst, supervising physician, physician 
assistant or nurse practitioner, and a DVRS or other vocational 
rehabilitation counselor. The program may employ, full-time or 
part-time, or contract for the services of team members. 
Program staff shall be available to patients as needed to perform 
initial assessments and to implement each patient's cardiac 
rehabilitation care plan. 

(b) Individuals may perform multiple team functions, if 
qualified for each fimction, as stated in this Rule: 

(1) Program Director - supervises program staff and 
directs all facets of the program. 

(2) Medical Director - physician who provides medical 
assessments and is responsible for supervising all 
clinical aspects of the program and for assuring the 
adequacy of emergency procedures and equipment, 
testing equipment, and personnel. 

(3) Nurse - provides nursing assessments and services. 

(4) Exercise Specialist - provides an exercise assessment, 
in consultation with the medical director, plans and 
evaluates exercise therapies. 

(5) Mental Health Professional - provides directly or 
assists program staff in completion of the mental 
health screening and referral, if indicated, for further 
mental health services. 

(6) Dietitian or Nutritionist - provides directly or assists 
program staff in completion of the nutrition 
assessment and referral, if indicated, for fiulher 
nutrition services. 

(7) Supervising Physician, Physician Assistant, or Nurse 
Practitioner - medical person who is on-site during the 
operation of programs that are not located within a 
hospital. 

(8) DVRS or other Vocational Rehabilitation Counselor - 
screens patients who may be eligible for and 
interested in vocational rehabilitation services, 
develops assessment and intervention strategies, and 
provides other services as needed to meet the 
vocational goal(s) of patients who may be ehgible for 
and interested in services. 

Authority G.S. 131E-169; 
Eff. July 1, 2000. 

.1303 CONTINUOUS QUALITY IMPROVEMENT 

(a) The cardiac rehabilitation program shall have an ongoing 
Continuous Quality Improvement (CQI) program which 
identifies quality deficiencies and addresses them with 
corrective plans of action, as indicated. 



(b) The CQI program shall evaluate the appropriateness, 
effectiveness, and quality of the cardiac rehabilitation program, 
with findings used to verify policy implementation, to identify 
problems, and to establish problem resolution and policy 
revision as necessary. 

(c) The CQI program shall consist of an overall pohcy and 
administration review, including admission and discharge 
policies, emergency care, patient records, personnel 
quahfications and program evaluation. Data to be assessed shall 
include, at a minimum, the following: 

(1) number of patients in the program; 

(2) average length (weeks) patients are in the program; 

(3) patient clinical outcomes; 

(4) adequacy of stafT to meet program/patient needs; 

(5) reasons for discharge; and 

(6) untoward events. 

(d) A sample of active and closed records shall be reviewed 
at least semi-annually to assure program policies are followed 
and the program is in compliance with the Article and the rules 
contained in this Subchapter. 

(e) Documentation of the CQI program shall include the 
criteria and methods used to collect and analyze data, 
identification of quahty deficiencies, and any action(s) taken by 
the cardiac rehabilitation program as a result of CQI findings. 

Authority G.S. 131E-169; 
Eff. July 1.2000. 

SECTION .1400 - PATIENT RIGHTS 

.1401 PATIENT RIGHTS 

(a) Prior to or at the time of admission, the program shall 
provide each patient with a written notice of the patient's rights 
and responsibilities. The program shall maintain documentation 
showing that all patients have been informed of their rights and 
responsibilities. 

(b) Each patient's rights shall include, at a minimum, the right 
to: 

( 1 ) be informed and participate in developing the patient's 
plan of care; 

(2) voice grievances about the care provided, and not be 
subjected to discrimination or reprisal for doing so; 

(3) confidentiality of the patient's records; 

(4) be informed of the patient's liability for payment for 
services; 

(5) be informed of the process for acceptance and 
continuation of service and eligibility determination; 

(6) accept or refiise services; and 

(7) be advised of the program's procedures for discharge. 

(c) The program shall provide all patients with a telephone 
number for information, questions or complaints about services 
provided by the program. The program shall also provide the 
Division Complaints Hotline number or the Department of 
Health and Human Services Careline number or both 

(d) The program shall investigate, within seven days, 
complaints made to the program by the patient, the patient's 
family, or significant other, and must document both the 
existence of the complaint and the resolution of the complaint. 



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Authority G.S. I31E-169; 
Eff. July 1, 2000. 

SECTION .1600 - PATIENT ASSESSMENT 

.1601 PATIENT ASSESSMENT 

(a) Within five weeks of a patient's admission to the program, 
the interdisciphnary team shall complete and document a cardiac 
rehabilitation assessment. At a minimum, the assessment shall 
include the components specified in this Rule. 

(b) Medical Assessment shall include: 

(1) cardiovascular evaluation as to present diagnosis, 
therapy, and a discharge summary of the patient's last 
hospitalization; or 

(2) statement by referring physician as to present 
diagnosis, and therapy; 

(3) resting 12-lead ECG; 

(4) medical record documentation prior to or during the 
first exercise session of ECG, hemodynamic data, and 
the presence or absence of symptoms, preferably 
determined by a graded exercise test. A graded 
exercise test shall not be required when deemed 
unnecessary by the patient's attending or personal 
physician or the program's medical director; 

(5 ) fasting blood chemistry, as indicated, to include total 
cholesterol, high density lipoprotein (HDL) 
cholesterol, low density lipoprotein (LDL) 
cholesterol, triglycerides, and other comparable 
measures; and 
simple spirometry, if clinically indicated. 

Physical Assessment shall include: 

fimctional capacity as determined by measured or 

predicted equivalents (METs); 

height, weight, or other anthropometric measures (i.e., 

body mass index, percent body fat, waist-to-hip ratio, 

girth measurements); 

current and past exercise history; and 

physical limitations and disabilities that may impact 

rehabilitation. 
Nursing Assessment shall include: 

coronary risk profile; 

current symptoms such as angina or dyspnea, and 

recovery from recent cardiac events; 

presence of comorbidities; 

assessment of medications; and 

educational needs. 
Nutrition Assessment shall include: 

review of medical history; 

eating patterns as measured by a food diary or food 

fi-equency questionnaire; 

fasting blood chemistries as described in 

Subparagraph (b)(5) of this Rule; 

anthropometric measures as described in 

Subparagraph (c)(2) of this Rule; 

(5) behavioral patterns; and 

(6) identification of nutritional goals, 
(f) Mental Health Assessment shall include: 

(1) past history of mental illness including depression. 



(6 

(c) 

(1 

(2 



(3 
(4 

(d) 
(1 

(2 

(3 
(4 
(5 
(e) 
(1 
(2 

(3 

(4 



anxiety, or hostihty or anger; and 
(2) present mental health functioning and need for 
referral to a mental health professional, 
(g) Vocational Assessment shaE include: 

(1) vocational questioimaire to determine current 
vocational status, description of physical 
requirements of job, working conditions, 
psychological demands as perceived by the patient; 
and 

(2) the need for vocational rehabilitation services. 

Authority G.S. 13IE-169; 
Eff. July 1. 2000. 

SECTION .1800 - PROVISION OF SERVICES 

.1802 EXERCISE THERAPY 

(a) The medical director, in consultation with program staff, 
shall establish staff to patient ratios for exercise therapy sessions 
based on medical acuity, utilizing an acceptable risk 
stratification model. 

(b) If any patient has not had a graded exercise test prior to 
the first exercise session, the patient's first exercise session must 
include objective assessment of hemodynamic data, ECG, and 
symptom response data. 

(c) Unless contraindicated by medical and laboratory 
assessments or the cardiac rehabilitation care plan, each patient's 
exercise therapy shall include: 

( 1 ) mode of exercise therapy including, but not limited 
to: walk/jog, aquatic activity, cycle ergometry, arm 
ergometry, resistance training, stair climbing, rowing, 
aerobics; 

(2) intensity: 

(A) up to 85 percent of symptom-limited heart rate 
reserve; 

(B) up to 80 percent of measured ma.ximal oxygen 
consumption; 

(C) rating of perceived exertion (RPE) of 1 1 to 13 
if a graded exercise test is not performed; or 

(D) for myocardial infarcdon patients: heart rate 
not to exceed 20 beats per minute above 
standing resting heart rate if a graded exercise 
test is not performed; and for post coronary 
artery by-pass graft patients: heart rate not to 
exceed 30 beats per minute above standing 
resting heart rate if a graded exercise test is not 
performed; 

(3) duration: up to 60 minutes, as tolerated, including a 
minimum of five minutes each for warm-up and cool- 
down; and 

(4) frequency: minimum of three days per week. 

(d) The patient shall be monitored through the use of 
electrocardiography during each exercise therapy session. The 
frequency of the monitoring continuous or intermittait shall be 
based on medical acuity and risk stratification. 

(e) At two week intervals, the patient's adherence to the 
cardiac rehabilitation care plan and progress toward goals shall 
be monitored by an examination of exercise therapy records and 



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documented. 

(f) The exercise specialist shall be responsible for 
consultation with the medical director or the patient's personal 
physician concerning changes in the exercise therapy, results of 
graded exercise tests, as needed or anticipated (e.g. regular 
follow-up intervals, graded exercise test conducted, or 
medication changes). Feedback concerning changes in the 
exercise therapy shall be discussed with the patient and 
documented. 

(g) Diabetic patients who are taking insulin or oral 
hypoglycemic agents for control of diabetes shall have blood 
sugars monitored for at least the first week of cardiac therapy 
sessions in order to establish the patient's level of control and 
subsequent response to exercise. Cardiac rehabihtation staff 
shall record blood sugar measurements pre- and post-exercise. 
Patients whose blood sugar values are considered abnormal for 
the particular patient shall be monitored. A carbohydrate food 
source or serving shall be available. Snacks shall be available in 
case of a hypoglycemic response. 



rehabilitation services. 
(5) The DVRS or other vocational rehabilitation 
counselor shall attend monthly staff meetmgs in 
which eligible vocational rehabilitation clients are 
discussed. If the coimselor cannot attend, the reason 
for the absence and the means of communicating 
information prior to and after the meeting shall be 
documented and attached to the staffing report. 

(b) The cardiac rehabilitation program must have written 
documentation that feedback as described in Subparagraph 
(a)(3) of this Rule and progress reports as described in 
Subparagraph (a)(4) of this Rule have been communicated to the 
cardiac rehabilitation program by the DVRS or other counselor 
and, if not, the reason(s) why. 

(c) If the program is not able to complete a written agreement 
with the local office of DVRS or other vocational rehabihtation 
counselor as outlined in Paragraph (a) of this Rule, the program 
shall have documentation that specifies why such an agreement 
was not completed. 



Authority G.S. 131E-169; 
Eff. July 1, 2000. 



Authority G.S. 13IE-I69; 
Eff. July 1. 2000. 



.1803 NUTRITION SERVICES 

If indicated, based on the nutrition assessment and cardiac 
rehabilitation care plan, each patient's program shall include the 
following nutrition services: 

(1) interpretation and feedback on the patient's eating 
patterns, blood chemistries, anthropometrics, and 
behavioral patterns; 

(2) identification of a therapeutic diet plan to determine, 
at a minimum, a reasonable body weight, caloric, and 
fat intake; 

(3) patient counseling or behavior modification based on 
the therapeutic diet plan and goals. 

Authority G.S. 131E-169; 
Eff. July 1. 2000. 

.1805 VOCATIONAL REHABILITATION 
COUNSELING AND SERVICES 

(a) The cardiac rehabilitation program shall have a written 
agreement, with the local DVRS office or other vocational 
rehabihtation counselor/services, which specifies the following: 

(1) The program shall administer a Vocational 
Questionnaire to patients. 

(2) After administering the Vocational Questionnaire, the 
program shall refer to the DVRS or other vocational 
rehabilitation counselor/services patients who may be 
eligible for and desire services. 

(3) The DVRS or other vocational rehabilitation 
counselor shall provide feedback to the cardiac 
rehabilitatton program regarding the eligibility for 
DVRS or other vocational services of referred 
pafients. 

(4) The DVRS or other vocational rehabilitation 
counselor shall provide progress reports for patients 
who are receiving DVRS or other vocational 



.1806 PATIENT EDUCATION 

(a) Each patient's cardiac rehabilitation care plan shall 
include participation in the program's basic education plan. At 
a minimum, the education plan shall include the following 
topics: 

(1) basic anatomy, physiology, and pathophysiology of 
the cardiovascular system; 

(2) risk factor reductions, including smoking cessation 
and management of blood pressure, lipids, diabetes, 
and obesity; 

(3) principles of behavior modification including 
nutrition, exercise, stress management and other 
lifestyle changes; 

(4) relaxation training offered at least once per week by 
staff trained in relaxation techniques; 

(5) cardiovascular medications including comphance, 
interactions, and side effects; 

(6) basic principles of exercise physiology, guidelines for 
safe and effective exercise therapy, and guidelines for 
vocational/recreational exertional activities; 

(7) recognition of cardiovascular signs, symptoms and 
management; and 

(8) environmental considerations such as exercise in hot 
or cold climates. 

(b) The educational program shall include individual or group 
sessions utilizing written, audio, or visual educational materials 
as deemed appropriate and necessary by program staff 

(c) Each session shall be documented and presented on a 
rotating basis such that each patient has access to all materials 
and classes offered. 

(d) Documentation shall be included in each patient's medical 
record to indicate which educational programs the patient 
attended. 

Authontv G.S I31E-I69; 



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Eff. July 1, 2000. 

SECTION .2000 - MEDICAL RECORDS 

.2001 POLICIES AND PROCEDURES FOR MEDICAL 
RECORDS 

The program shall develop and implement policies and 
procedures to include at least the following: 

(1) maintenance of a complete, accurate, and organized 
medical record for each patient admitted to the 
program; 

(2) confidentiality of records; 

(3) accessibility of medical record information to the 
patient, program staff, and non-employees; and 

(4) authentication of entries in medical records including 
hard copy records and those kept in electronic 
medium such as computerized records. 

Authority G.S. 131E-169; 
Eff. July 1, 2000. 

SECTION .2100 - FACILITIES AND EQUIPMENT 

.2 1 02 GRADE D EXERCISE TESTING LABORATORY 

If the program performs graded exercise testing, the following 
facihties and equipment shall be available: 

(1) space for physical examination which allows for 
visual privacy; 

adequate space and temperature and humidity 
controls for exercise as described under Rule .2 1 1 of 
this Subchapter; 

1 2-lead EGG equipment for recording the EGG during 
exercise testing; 

oscilloscope for EGG monitoring or continuous 
recording; 

treadmill, bicycle ergometer, or arm crank eigometer; 
blood pressure cuff and stethoscope; 
emergency procedures, equipment, and supplies as 
described in Section .1900 of this Subchapter; and 
access to spirometer for pulmonary function testing. 



(2) 



(3) 

(4) 

(5) 
(6) 
(7) 



(8) 



Authority G.S. 131E-169; 
Eff. July 1. 2000. 

SUBCHAPTER 3U - CHILD DAY CARE STANDARDS 



SECTION .2500 



DAY CARE FOR SCHOOL-AGE 
CHILDREN 



.2501 SCOPE 

The regulations in this Section apply to all child care centers 
offering care to three or more school-age children exclusively or 
as a component of any other program. All rules in this 
Subchapter pertaining to full-time, part-time, or seasonal child 
care shall apply to programs for school-age children except as 
provided in this Section. 

Authority G.S. 110-86(3); 110-91; 1 438-168.3; 



Amended Eff. July 1, 2000. 

.2502 SPECIAL PROVISIONS FOR LICENSURE 

A center providing care for school-age children exclusively 
shall be issued a license restricting care to school-age children 
as defined in Rule .0102 of this Subchapter. A center providing 
care for school-aged children exclusively on a seasonal basis 
between May 15 and September 15 shall be hcensed as a 
summer day camp. 

Authority G.S 110-88(1); 110-91; 143B-168.3; 
Amended Eff. July 1, 2000. 

SECTION .2800 - VOLUNTARY RATED LICENSES 

.2804 EDUCATION STANDARDS FOR A RATED 
LICENSE FOR CHILD CARE CENTERS 

(a) To achieve two points for education standards for a star 
rating, child caring staff in the center shall meet the following 
requirements: 

(1) The on-site administrator shall have: 

(A) A Level I North Carolina Early Childhood 
Administration Credential or its equivalent; 
and 

(B) Two years of full-time verifiable early 
childhood work experience. 

(2) For centers with a licensed capacity of 200 or more, 
there shall be a second administrator on-site for a 
minimum of 20 hours per week who shall have the 
Level I North Carolina Early Childhood 
Administration Credential or its equivalent. 

(3) All lead teachers shall have the North Carolina Early 
Childhood Credential or its equivalent, and 75% of 
the lead teachers shall have: 

(A) Completed or be enrolled in 3 semester hours 
in early childhood education or child 
development (not including North Carolina 
Early Childhood Credential coursework); or 

(B) One year of fiill-time verifiable early childhood 
work experience. 

(4) 50% of the teachers counted in staffchild ratios shall 
have: 

(A) Completed or be enrolled in two semester 
hours in early childhood education or child 
development; or 

(B) One year of full-time verifiable early childhood 
work experience. 

(5) For centers with a school-age care component, the 
following requirements shall also apply. Completion 
of these requirements may count toward meeting 
education and experience requirements in Paragraph 
(a)(1) through (a)(4) of this Rule. 

(A) If none of the administrator's verifiable 
experience includes working with school aged- 
children in a school-age care or camp setting, 
he or she shall complete the Basic School-Age 
Care (BSAC) Training. 

(B) The individual designated as the program 



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coordinator as allowed in Rule .25 10 shall have 
at least 200 hours of verifiable expenence 
working with school-aged children in a 
licensed child care program; or have at least 
300 hours of verifiable experience working 
with school-age children in an unlicensed 
school-age care or camp setting; or have 
completed or be enrolled in at least two 
semester hours of school-age care related 
coursework. 
(C) For centers with a school-age care component 
with 200 or more school-aged children 
enrolled, there shall be two program 
coordinators on site, one of whom shall not 
have concurrent group leader responsibilities. 
The additional program coordinator shall meet 
the staff requirements in Rule 2510 of this 
Subchapter, 
(b) To achieve three points for education standards for a star 

rating, child caring staff in the center shall meet the following 

requirements. 

( 1 ) The on-site administrator shall have: 

(A) A Level 1 North Carohna Early Childhood 
Administration Credential or its equivalent; 
and 

(B) Six semester hours in early childhood 
education or child development (not including 
North Carolina Early Childhood 
Administration Credential coursework); and 

(C) Two years of full-time verifiable early 
childhood work experience. 

(2) For centers with a licensed capacity of 200 or more, 
there shall be a second administrator on-site for a 
minimum of 20 hours per week who shall have the 
Level I North Carolina Early Childhood 
Administration Credential or its equivalent. 

(3) All lead teachers shall have the North Carolina Early 
Childhood Credential or its equivalent, and 75% of 
the lead teachers shall have; 

(A) Three semester hours in early childhood 
education or child development (not including 
North Carolina Early Childhood Credential 
coursework); or 

(B) Two years of full-time verifiable early 
childhood work experience. 

(4) 50% of the teachers counted in staff child ratios shall 
have: 

(A) Completed or be enrolled in the North Carolina 
Early Childhood Credential or its equivalent; 
or 

(B) Completed or be enrolled in four semester 
hours in early childhood education or child 
development; or 

(C) Three years of fiall-time verifiable early 
childhood work experience. 

(5) For centers with a school-age care component, the 
following requirements shall also apply. Completion 
of these requirements may count toward meeting 



education and experience requirements in Paragraph 
(b)(1) tJirough (a)(4) of this Rule. 

(A) The administrator shall have at least 300 hours 
of venfiable experience working with school- 
aged children in a licensed child care program, 
or at least 450 hours of verifiable experience 
workmg with school-aged children in an 
unlicensed school-age care or camp setting, or 
shall complete the BSAC Traming. 

(B) The individual designated as the program 
coordinator as allowed in Rule 2510 shall have 
at least 400 hours of verifiable experience 
working with school-age children in a licensed 
child care program; or have at least 600 hours 
of verifiable experience working with school- 
aged children in an unlicensed school-age care 
or camp setting; or have completed at least two 
semester hours of school-age care related 
coursework. 

(C) For centers with a school-age care component 
writh 200 or more school-aged children 
enrolled, there shall be two program 
coordinators on site; one of whom shall not 
have concurrent group leader responsibihfies. 
The additional program coordinator shall meet 
the staff requirements of Rule .2510 of this 
Subchapter. 

(D) 25% of the individuals designated as group 
leaders as allowed in Rule .25 10 shall have at 
least 100 hours of verifiable experience 
working with school-aged children in a 
hcensed child care program; or have at least 
150 hours of verifiable experience working 
with school-aged children in an unlicensed 
school-age care or camp setting; or have 
completed or be enrolled in at least two 
semester credit hours of school-age care 
related coursework. 

(c) To achieve four points for education standards for a star 
rating, child canng staff in the center shall meet the following 
requirements: 

(1) The on-site administrator shall have: 

(A) A Level II North Carolina Early Childhood 
Administtation Credential or its equivalent; 
and 

(B) Two years of fiill-time verifiable early 
childhood work experience. 

(2) For centers with a licensed capacity of 200 or more, 
there shall be a second administrator on-site for a 
minimum of 20 hours per week who shall have the 
Level 1 North Carolina Early Childhood 
Administration Credential or its equivalent. 

(3) All lead teachers shall have the North Carohna Early 
Childhood Credential or its equivalent, and 75% shall 
have: 

(A) Nine semester hours in early childhood 
education or child development (not including 
the North Carolina Early Childhood Credential 



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APPROVED RULES 



coursework); and 
(B) Two years of full-time verifiable early 
childhood work experience. 

(4) 50% of the teachers counted in staffchild ratios shall 
have: 

(A) The North Carohna Early Childhood 
Credential or its equivalent; or 

(B) Four semester hours in early childhood 
education or child development; or 

(C) Five years of full-time verifiable early 
childhood work experience. 

(5) For centers with a school-age care component, the 
following requirements shall also apply. Completion 
of these requirements may count toward meeting 
education and experience requirements in Paragraph 
(c)(1) through (c)(4) of this Rule. 

(A) The administrator shall have at least 600 hours 
of verifiable experience working with school- 
aged children in a licensed child care program, 
or at least 900 hours of verifiable experience 
working with school-aged children in an 
unlicensed school-age care or camp setting, or 
shall complete the BSAC Training. 

(B) The individual designated as the program 
coordinator as allowed in Rule .2510 of this 
Subchapter shall have at least 900 hours of 
verifiable experience working with school-age 
children in a licensed child care program or at 
least 1350 hours of verifiable experience 
working with school-aged children in an 
unlicensed school-age care or camp setting; 
and have completed at least four semester 
hours of school-age care related coursework. 

(C) For centers with a school-age care component 
with 200 or more school-aged children 
enrolled, there shall be two program 
coordinator's on site, one of whom shall not 
have concurrent group leader responsibilities. 
The additional program coordinator shall meet 
the staff requirements in Rule .2510 of this 
Subchapter. 

(D) 50% of the individuals designated as group 
leaders as allowed in Rule .2510 of this 
Subchapter shall have at least 300 hours of 
verifiable experience working with school-aged 
children in a licensed child care program; or 
have at least 450 hours of verifiable experience 
working with school-aged children in an 
unlicensed school-age care or camp setting; or 
have completed at least two semester credit 
hours of school-age care related coursework. 

(E) Assistant group leaders shall be at least 18 
years of age. 

(d) To achieve five points for education standards for a star 
rating, child caring staff in the center shall meet the following 
requirements. 

( 1 ) The on-site administrator shall have: 

(A) A Level III North Carolina Early Childhood 



Administration Credential or its equivalent; 
and 
(B) Four years of full-time verifiable work 
experience in an early childhood center 
teaching young children, or four years of 
administrative experience, or four years of a 
combination of both. 

(2) For centers with a licensed capacity of 200 or more, 
there shall be a second administrator on-site for a 
minimum of 20 hours per week who shall have the 
Level I North Carolina Early Childhood 
Administration Credential or its equivalent. 

(3) All lead teachers shall have the North Carolina Early 
Childhood Credential or its equivalent, and 75% of 
the lead teachers shall have: 

(A) At least an A.A.S. degree in early childhood 
education or child development or an A.A.S. 
degree in any major with 12 semester hours in 
early childhood education or child 
development; and 

(B) Two years of fiill-time verifiable early 
childhood work experience. 

(4) 50% of the teachers counted in staflD'child ratios shall 
have: 

(A) The North Carohna Early Childhood 
Credential or its equivalent; and 

(B) Four semester hours in early childhood 
education or child development (not including 
North Carolina Early Childhood Credential 
coursework); and 

(C) Two years of full-time verifiable early 
childhood experience. 

(5) For centers with a school-age care component, the 
following requirements shall also apply. Completion 
of these requirements and may count toward meeting 
education and experience requirements in Paragraph 
(d) (1) through (d)(4) of this Rule. 

(A) The administrator shall have at least 900 hours 
of verifiable experience working with school- 
aged children in a licensed child care program, 
or at least 1350 hours of verifiable experience 
working with school-aged children in an 
unlicensed school-age care or camp setting, or 
shall complete the BSAC Training. 

(B) The individual designated as the program 
coordinator as allowed in Rule .2510 of this 
Subchapter shall have at least 900 hours of 
verifiable experience working with school-age 
children in a hcensed child care program or at 
least 1350 hours of verifiable experience 
working with school-aged children in an 
unlicensed school-age care or camp setting, 
and have completed at least six semester hours 
of school-age care related coursework; or shall 
have at least 600 hours of verifiable experience 
working with school-aged children in a 
hcensed child care program or at least 900 
hours of verifiable experience working vrith 



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school-aged children in an unlicensed school- 
age care or camp setting, and have completed 
at least nine semester hours of school-age care 
related coursework. 

(C) For centers with a school-age care component 
with 200 or more school-age children, there 
shall be two program coordinators on site, one 
of whom shall not have concurrent group 
leader responsibihties. The additional program 
coordinator shall meet the minimum staff 
requirements in Rule .25 10 of this Subchapter. 

(D) 75% of the individuals designated as group 
leaders as allowed in Rule .2510 of this 
Subchapter shall have at least 600 hours of 
verifiable experience working with school-aged 
children in a licensed child care program or at 
least 900 hours of verifiable experience 
working with school-aged children in an 
unlicensed school age care or camp setting; or 
shall have completed at least two semester 
hours of school-age care related coursework 
and have completed or be enrolled in at least 
two additional semester credit hours of school- 
age related coursework. 

(E) Assistant group leaders shall be at least 18 
years of age. 

(e) For centers with a licensed capacity of three to twelve 
children located in a residence, when an mdividual has 
responsibility both for administering the child care program and 
for planning and implementing the daily activities of a group of 
children, the educational requirements for lead teacher in this 
Rule shall apply. All other teachers shall follow the educational 
requirements for teachers in this Rule. 

(f) As used in this Rule, the definition of the term "experience 
working with school-aged children" in Rule .2510(i) of this 
Subchapter shall apply. 

Authority G.S. 110-88(7); 110-90(4): 143B- 168.3; 
Eff. July 1. 2000. 

.2811 EDUCATION STANDARDS FOR CENTERS 
THAT PROVIDE CARE ONLY TO SCHOOL- 
AGE CHILDREN 

(a) For child care programs that serve school-aged children 
only, the following staff education requirements apply instead 
of those in Rule .2804 of this Subchapter 

(b) To achieve two points for education standards for a star 
rating, child carmg staff in the school-age care program shall 
meet the following requirements: 

( 1 ) The administtator shall have a Level I North Carolina 
Early Childhood Administration Credential or its 
equivalent. 

(2) The program coordinator shall have completed the 
coursework or the requirements for staff described in 
Rule .25 10(b)(2); and have 

(A) At least 200 hours of verifiable experience 
working with school-age children in a licensed 
child care program, or 



(B) At least 300 hours of verifiable experience 
working with school-age children in an 
hcensed school-age care or camp setting, or 

(C) Completed or be enrolled in at least two 
additional semester credit hours of school-age 
care related coursework. 

(c) To achieve three points for education standards for a star 
rating, child caring staff in the school-age care program shall 
meet the following requirements. 

( 1 ) The administrator shall have: 

(A) A Level I North Carolina Early Childhood 
Administration Credential or its equivalent; 
and 

(B) At least 300 additional hours of verifiable 
experience working with school-aged children 
in a licensed child care program, or at least 450 
additional hours of verifiable experience 
working with school-aged children in an 
unlicensed school-age care or camp setting. 

(2) The program coordinator shall have completed the 
coursework or the requirements for staff described m 
Rule .2510(b)(2); and have 

(A) At least 400 hours of verifiable experience 
working with school-age children in a hcensed 
child care program or supervising the school- 
age component of a licensed child care 
program, or 

(B) At least 600 hours of verifiable experience 
working with school-age children in an 
unlicensed school-age care or camp setting or 

(C) Completed at least two addifional semester 
credit hours of school-age care related 
coursework. 

(3) Twenty-five percent of group leaders shall have: 

(1) At least 100 hours of verifiable experience 
working with school-aged children in a 
hcensed child care program, or 

(2) At least 150 hours of verifiable experience 
working with school-aged children in an 
unlicensed school-age care or camp setting. 

(3)Completed or be enrolled in at least two semester 
credit hours of school-age care related 
coursework. 

(d) To achieve four points for education standards for a star 
rating, child caring staflf in the school-age care program shall 
meet the following requirements. 

( 1 ) The administtator shall have: 

(A) A Level 1! North Carolina Early Childhood 
Adminisfratton Credential or its equivalent; 
and 

(B) At least 600 additional hours of verifiable 
experience working with school aged children 
in a licensed program, or at least 900 
additional hours of verifiable experience 
working with school-aged children in an 
unlicensed school-aged care or camp setting; 
and. 

(2) The program coordinator shall have completed the 



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1536 



APPROVED RULES 



coursework or the requirements for staff described in 
Rule .25 10(b)(2); and have 

(A) At least 900 hours of verifiable experience 
working with school-age children in a licensed 
child care program or at least 1350 hours of 
verifiable experience working with school-aged 
children in an unlicensed school-age care or 
camp setting; and 

(B) Completed at least four additional semester 
credit hours of school-age care related 
coursework. 

(3) Fifty percent of group leaders shall have: 

(A) At least 300 hours of verifiable experience 
working with school-aged children in an 
licensed school-age care or camp setting, or 

(B) At least 450 hours of verifiable experience 
working with school-aged children in an 
unlicensed school-age care or camp setting, or 

(C) Completed at least two semester credit hours 
of school-age care related coursework; 

(4) Assistant group leaders shall be at least 18 years old. 
(e) To achieve five points for education standards for a star 

rating, child caring staff in the school-age care program shall 
meet the following requirements. 

( 1 ) The administrator shall have: 

(A) A Level 111 North Carolina Early Childhood 
Administration Credential or its equivalent; 
and 

(B) At least 900 additional hours of verifiable 
experience performing administrative duties in 
a licensed child care program serving school- 
age children, or at least 1350 additional hours 
of verifiable experience performing 
administrative duties in an unlicensed school- 
age care or camp setting. 

(2) The program coordinator shall have completed the 
coursework or the requirements for staff described in 
Rule. 2510(b)(2); and have 

(A) At least 900 hours of verifiable experience 
working with school-age children in a hcensed 
child care program or at least 1350 hours of 
verifiable experience working with school-aged 
children in an unlicensed school-age or camp 
setting, and completed at least six additional 
semester credit hours of school-age care 
related coursework; or 

(B) At least 600 hours of verifiable experience 
working with school-age children in a licensed 
child care program or at least 900 hours of 
verifiable experience working with school-aged 
children in an unlicensed school-age care or 
camp setting, and completed at least nine 
additional semester credit hours of school-age 
care related coursework. 

(3) Seventy-five percent of group leaders shall have: 

(A) At least 600 hours of experience working 
with school-aged children in a licensed 



child care program; or 

(B) At least 900 hours of experience working 
with school-aged children in an unlicensed 
school-age care or camp setting; or 

(C) Completed at least two semester credit 
hours of school-age care related 
coursework and have completed or be 
enrolled in at least two additional semester 
credit hours of school-age care related 
coursework, 

(4) Assistant group leaders shall be at least 1 8 years old. 

(f) Unless otherwise stated in this Rule, group leaders and 
assistant group leaders shall meet the minimum qualifications 
required in Rule .25 10 of this Subchapter, including completion 
of BSAC Training. 

(g) For programs with a hcensed capacity of 200 or more 
school-age children, there shall be two program coordinators on 
site, one of whom shall not have concurrent group leader 
responsibilities. The additional program coordinator shall meet 
the staff requirements in Rule .2510 of this Subchapter. 

(h) As used in this Rule, the definition of the term 
"experience working with school-aged children" in Rule .2 5 1 0(i) 
of this Subchapter shall apply. 

Authority G.S. 110-88(7); 110-90(4); 110-91; 143B-168; 
EJf. July 1, 2000. 

CHAPTER 20 - VOCATIONAL REHABILITATION 

SUBCHAPTER 20B - PROCEDURE 

SECTION .0200 - CONTESTED CASES: 
ADMINISTRATIVE REVIEWS: APPEALS HEARINGS 

.0224 SECRETARY'S REVIEW AND FINAL 
DECISION 

(a) Either party may request an impartial review of the 
hearing officer's decision according to the standards in 
Paragraph (d) of this Rule by the Secretary of the Department of 
Health and Human Services within 20 days of the receipt of the 
decision. 

(b) The Secretary may delegate the responsibility for 
reviewing the hearing officer's decision and making the final 
decision to another employee of the Department but shall not 
delegate the responsibility to any officer or employee of the 
Division, (c) In conducting the review, the reviewing official 
shall send the written notification to both parties and allow the 
submission of additional evidence as required by Sec. 102 (c) of 
the Rehabilitation Act of 1973 (as amended by the 
Rehabilitation Act Amendments of 1998, P.L. 105-220). The 
written notification shall be given personally or by certified 
mail. If given by certified mail, it shall be deemed to have been 
given on the delivery date appearing on the return receipt. 

(d) The reviewing official's review shall be based on the 
following standards of review: 

( 1 ) Is the hearing officer's decision arbitrary, capricious, 
an abuse of discretion, or otherwise unreasonable? 

(2) Is the hearing officer's decision supported by 



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APPROVED RULES 



substantial evidence and consistent with facts and 
applicable federal and state policy "^ 
(3) In reaching the decision, has the hearing officer given 
appropriate and adequate interpretation to such 
factors as: 

(A) the federal statute and regulations as they 
apply to specific issue(s) in question; 

(B) the state plan as it applies to the specific 
issue(s) in question; 

(C) division rules as they apply to the specific 
issue(s) in question; 

(D) key portions of conflicting testimony; 

(E) division options in the dehvery of services 
where such options are permissible under the 
federal statute; and 

(F) restrictions in the federal statute with regard to 
such supportive services as maintenance and 
transportation. 

(e) The reviewing official shall make the final decision and 
provide such decision in writing to both parties within 30 days 
of the date the request for a review of the hearing officer's 
decision was received. The decision shall mclude a full report 
of the findings and the grounds for the decision. The reviewing 
official shall not overturn or modify a decision, or part of a 
decision, of an impartial hearing officer that supports the 
position of the individual except as allowed under Sec. 102 (c) 
of the Rehabilitation Act of 1973 (as amended by the 
Rehabilitation Act Amendments of 1998, P.L. 105-220). The 
final decision shall be given to both parties or chent personally 
or by certified mail. If given by certified mail, it shall be 
deemed to have been given on the delivery date appearing on the 
return receipt. 

(f) The hearing officer's decision shall be the final decision 
under the conditions specified in Sec. 102(c) of the 
Rehabilitation Act of 1973 (as amended by the Rehabilitation 
Act Amendments of 1998, P.L. 105-220). 

(g) The division director shall forward a copy of the final 
decision, whether issued under (e) or (f) of this Rule, to the 
Chief of Operations, the CAP director, the regional director, and 
the applicant's or client's representative, as appropriate. Acopy 
shall also be included in the individual's official case record. 

Authority G.S. 143-545.1; 143-546.1; 150B-1; P.L. 105-220; 
Amended Eff July 1, 2000. 



TITLE 15A - DEPARTMENT OF ENVIRONMENT 
AND NATURAL RESOURCES 

CHAPTER 1 - DEPARTMENTAL RULES 

SUBCHAPTER 1 J - STATE CLEAN WATER 
REVOLVING LOAN AND GRANT PROGRAM 

SECTION .0100 - GENERAL PROVISIONS 

.0102 DEFINITIONS 

In addition to the definitions in G.S. 159G-3, the following 



definitions apply to this Subchapter: 

(1) "Act" means the NortJh Carolina Clean Water 
Revolving Loan and Grant Act of 1 987, G S 1 59G. 

(2) "Award" means the offer by the receiving agency to 
enter into a loan or grant commitment for a specified 
amount. 

(3) "Award of contract" means the award by the loan or 
grant recipient to a contractor of a contract to 
construct the project as bid. 

(4) "Bid" means the amount of money for which a 
contractor offers to construct the project. 

(5) "Contingency costs" means unforeseen costs or 
situations not included in the estimate of project 
costs. 

(6) "Commitment" means a binding agreement to pay 
loan or grant funds in a lump sum or in installments to 
an eligible applicant at some future time. 

(7) "Date of completion" means the date on which the 
project has been completed, as determined by the 
receiving agency. 

(8) "Division of Environmental Health" means the 
Division of Environmental Health of the North 
Carolina Department of Environment and Natural 
Resources. 

(9) "Division of Environmental Management" means the 
Division of Water Quality of the North Carolina 
Department of Environment and Natural Resources. 

(10) "Effective date of receipt" means September 30 for 
applications postmarked or hand delivered to the 
principal offices of the receiving agency in Raleigh, 
North Carolina between April 1 and September 30, 
and means March 3 1 for applications postmarked or 
hand dehvered to the principal offices of the receiving 
agency in Raleigh, North Carolina between October 
1 and March 31; except that for applications to the 
Emergency Wastewater or Water Supply Revolving 
Loan Account it means the date designated by the 
receiving agency for each priority review period 
estabhshed under Rule 0801(b) of this Subchapter. 

(11) "Fiscal year" means the state fiscal year, beginning on 
July 1 of a calendar year and ending on June 30 of the 
following calendar year. In referring to a specific 
fiscal year, the year named is the calendar year in 
which the fiscal year ends. For example, "Fiscal Year 
1988" refers to the fiscal year beginning July 1, 1987 
and ending June 30, 1988. 

(12) "Inspection" means inspection or inspections of a 
project to determine percentage completion of tie 
project and compliance with applicable federal, state 
and local laws or rules. 

(13) "Orders" means any restrictive measure, related to the 
operation of its wastewater treatment facilities, issued 
to an applicant for a loan or grant fi-om the 
wastewater accounts under this Subchapter. Such 
measures may be included in,, but are not restricted to. 
Special Orders, Special Orders by Consent, Judicial 
Orders, or issued or proposed penmts, permit 
modifications or certificates. 



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APPROVED RULES 



(14) "Project" means the works described in the 
apphcation for a loan or grant under this Subchapter. 

(15) "Loan" means "revolving loan" as defined in G.S. 
1590-3(15). 

(16) "Priority period" means priority review period as 
established in Section .0800 of this Subchapter. 

(17) "Real property" means land and structures affixed to 
the land having the nature of real property or interests 
in land including easements or other rights-of-way 
purchased or acquired for water supply and 
wastewater facilities and works to be constructed as 
a part of the project for which a loan or grant is made 
under this Subchapter. 

(18) "Regional water supply system" means: 

(a) A public water system that serves two or more 
local units of government, or 

(b) A pubhc water system that demonstrates each 
of the following: 

(i) A specific plan to provide drinking 
water throughout the territory of a local 
unit of government, except that a 
municipality shall also demonstrate a 
specific plan to provide drinking water 
outside its extraterritorial jurisdiction; 

(ii) Shares water supply facility resources 
with another public water system or 
eliminate an acute/imminent, 
immediate, chronic, or potential health 
hazard as described in Rule .0701 (a) 
through (d) of this Subchapter in an area 
containing at least 15 residential units 
which is not served by a pubhc water 
system; and 

(iii) A interlocal agreement or joint 
resolution to be a part of an 
interconnected regional water system 
within 1 years. 

(19) "Regional wastewater system" means a public 
wastewater collecfion or treatment system of a 
municipality, county, sanitary district, or other 
political subdivision of the State or combination 
thereof that serves two or more units of government. 

(20) "Water Reclamation" means the production of a high 
level treated effluent as a reusable, non-potable water 
source. 

(21) "Water Reuse" means the actual use or apphcation of 
treated wastewater in or on areas which require water 
but do not require potable water quality. 

Authority G.S. 159G-3; 159G-15; 
Amended Eff. August /, 2000. 

SECTION .0200 - ELIGIBILITY REQUIREMENTS 

.0202 GRANTS FROM THE HIGH-UNIT COST 
ACCOUNTS 

(a) Ehgibility of an application for a grant fi-om the High-Unit 
Cost Wastewater Account or the High-Unit Cost Water Supply 



Account, and the amount eligible for such a grant, will be 
determined by the receiving agency in accordance with G.S. 
1 59G-6(b)(2) or 1 59G-6(c)(2), subject to the limitations in G.S. 
159G-6(a)(2). 

(b) For the purposes of Rule .0202(a) of this Subchapter, 
median household income in the local government imit in which 
the project is located will be as determined jointly each year by 
the U.S. Bureau of Census and the U.S. Department of Housing 
and Urban Development. 

(c) Grants fi-om the High-Unit Cost Wastewater and Water 
Supply Accounts will be made only to approved projects that 
receive a commitment for the balance of project costs fi-om any 
other source, including loans under this Subchapter and other 
loans fi"om govermnental or private sources. 

(d) Grants fi-om the High-Unit Cost Water Supply accounts 
will be made only to applicants who have submitted a local 
water supply plan to the Department of Environment and 
Natural Resources in accordance with G.S. 143-355(1). 

Authority G.S. l59G-6(a)(2); l59G-6(b)(2); 159G-6(c)(2): 

159G-J5; 

Amended Eff August J. 2000. 

SECTION .0300 - APPLICATIONS 

.0303 FILING OF REQUIRED SUPPLEMENTAL 
INFORMATION 

(a) Every application shall be accompanied by an 
environmental assessment document as required by G.S. 
159G-8(b), by the date the receiving agency sets the priority 
rating for a priority review period. 

(b) Any application that has not received approval by the 
receiving agency of the preliminary engineering report for the 
proposed project by the date the receiving agency sets the 
priority rating for a priority review period shall not be included 
in the priority rating for that priority review period. 

(c) Any applicant for a water supply project not 
demonstrating approval of plans and specifications within four 
months from the end of the priority rating period shall be 
transferred to the next priority rating period for consideration 
unless this review is the second review in which case a new 
application shall be required for fiirther consideration. 

(d) Any application that is not accompanied by an adopted 
resolufion as required by G.S. 159G-9(3) stating that the umt of 
government has complied or will substanfially comply with all 
applicable federal, state and local laws or rules shall not be 
included in the priority rating for that priority review period. 
Such resolution shall be certified or attested to as a true and 
correct copy as adopted. 

(e) If a public hearing is held on an application, the 
apphcation shall not be included in the priority rating unless the 
hearing process is concluded by the date the receiving agency 
sets the priority rating for the priority review period. 

(f) A certification shall be submitted by the local government 
unit stating that it will be in compliance with verifiable Minority 
Business Enterprise goals as stated in G.S. 143-128. 

Authority G.S 159G-8; 159G-9: 159G-I0(a); 159G-15; 



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APPROVED RULES 



Amended Eff. August 7, 2000. 

SECTION .0900 - LOAN AND GRANT AWARD AND 

COMMITMENT: DISBURSEMENT OF LOANS 

AND GRANTS 

.0904 DISBURSEMENT OF LOANS AND GRANTS 

(a) Disbursement of loan and grant monies shall be made at 
intervals as work progresses and expenses are incurred. No 
disbursement shall be made until the receiving agency receives 
documentation of incurred costs At no time shall disbursement 
exceed the allowable costs which have been incurred at that 
time. 

(b) Project inspection shall confirm work progress, and a 
final inspection is required prior to the final disbursement of 
loan monies. 

(c) No disbursement shall be made until the receiving agency 
receives documentation of compliance with the verifiable 
percentage goal for participation by minority businesses in 
accordance with G.S. 143-128. 

(d) The receiving agency shall notify the Office of the 
Controller of the Department of Environment and Natural 
Resources to make loan or grant disbursements. A check in the 
amount of the disbursement authorized by the receiving agency 
shall be written to the loan or grant recipient by the Office of the 
Controller. 

Authority G.S. 159G-12; 1590-15; 
Amended Ejf. August 1, 2000. 

SUBCHAPTER IL - STATE CLEAN WATER BOND 
LOAN PROGRAM 

SECTION .0100 - GENERAL PROVISIONS 

.0102 DEFINITIONS 

The following definitions apply to this Subchapter: 

(1) "Act" means the North Carolina Education, Clean 
Water, and Parks Bond Act of 1993, S.L c.542, s 10. 

(2) "Award" means the offer by the receivmg agency to 
enter into a loan commitment for a specified amount. 

(3) "Award of contract" means the award by the loan 
recipient to a contractor of a contract to construct the 
project as bid. 

(4) "Bid" means the amount of money for which a 
contractor offers to construct the project. 

(5) "Contingency costs" means unforeseen costs or 
situarions not included in the estimate of project 
costs. 

(6) "Commitment" means a binding agreement to pay 
loan funds in installments to an eligible applicant at 
some future time. 

(7) "Date of completion" means the date on which the 
project has been completed, as determined by the 
receiving agency. 

(8) "Division of Environmental Health" means the 
Division of Environmental Health of the North 
Carolina Department of Environment and Natural 



Resources. 
(9) "Division of Environmental Management" means the 
Division of Water Quality of tie North Carolina 
Department of Environment and Natural Resources. 

(10) "Effective date of receipt" means September 30 for 
applications postmarked or hand delivered to the 
principal offices of the receiving agency in Raleigh, 
North Carolijia between April 1 and September 30, 
and means March 3 1 for applications postmarked or 
hand delivered to the principal offices of the receiving 
agency in Raleigh, North Carolina between October 
1 and March 3 1 . 

(11) "Fiscal year" means the state fiscal year, beginning on 
July 1 of a calendar year and ending on June 30 of the 
following calendar year. In referring to a specific 
fiscal year the year named is the calendar year in 
which the fiscal year ends. For example. Fiscal Year 
1994 refers to the fiscal year beginning July 1, 1993 
and ending June 30, 1994. 

(12) "Inspection" means inspection or inspections of a 
project to determine percentage completion of the 
project and compliance with apphcable federal, state 
and local laws or rules. 

(13) "Orders" means any restrictive measure, related to the 
operation of its wastewater treatment facilities, issued 
to an applicant for a loan from the wastewater 
accounts under this Subchapter. Such measures may 
be included in, but are not restricted to. Special 
Orders, Special Orders by Consent, Judicial Orders, 
or issued or proposed permits, permit modifications 
or certificates. 

(14) "Project" means the works described in the 
applicarion for a loan under this Subchapter. 

(15) "Priority period" means priority review period of 
January 1 to June 30 and July 1 to December 31 of 
each year. 

(16) "Real property" means land and structures affixed to 
the land having the nature of real property or mterests 
in land including easements or other nghts-of-way 
purchased or acquired for facilities and works to be 
constructed as a part of the project for which a loan is 
made under this Subchapter. 

(17) "Receiving agency" means the Division of 
Environmental Health with respect to receipt of 
applications for loans for water supply systems, and 
the Environmental Management Commission and the 
Division of Environmental Management with respect 
to receipt of applications for loans for wastewater 
systems. 

(18) "Regional water supply system" means: 

(a) A public water system that serves two local 
imits of government, or 

(b) A public water system that demonstrates each 
of the following: 

(i) A specific plan to provide drinking 
water throughout the territory of a local 
unit of government, except tJiat a 
municipality shall also demonstrate a 



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specific plan to provide drinking water 
outside its extraterritorial jurisdiction; 
(ii) Shares water supply facility resources 
with another pubhc water system or 
eliminate an acute/imminent, 
immediate, chronic, or potential health 
hazard as described in Rule .0701(a) 
through (d) of this Subchapter in an area 
containing at least 15 residential units 
which is not served by a pubhc water 
system; and 
(iii) An interlocal agreement or joint 
resolution to be a part of an 
interconnected regional water system 
within 10 years. 

(19) "Regional wastewater system" means a public 
wastewater collection or treatment system of a 
municipality, county, sanitary district, or other 
political subdivision of the State or combination 
thereof that serves two or more units of government. 

(20) "Water Reclamation" means the production of a high 
level treated effluent as a reusable, non-potable water 
source. 

(2 1 ) "Water Reuse" means the actual use or apphcation of 
treated wastewater in or on areas which require water 
but do not require potable water quality. 

Authority S.L 1998, c. 132, s. 10; 
Amended Eff. August 1, 2000. 

SECTION .0800 - CRITERIA FOR WATER 
CONSERVATION 

.0801 PLANNING AND WATER CONSERVATION 

Maximum value - 80 points: 
(1) An applicant may receive a maximum of 15 bonus 
points for meeting the following criteria as applicable: 

(a) An applicant demonstrates it has a continuing 
I/I program in its wastewater sewer 
maintenance program. 

(Wastewater Projects Only) 5 points 

(b) An applicant demonstrates it has a continuing 
water loss program in its water supply system 
program, 

(Water Supply Projects Only) 5 points 

(c) An applicant demonstrates it has a continuing 
program of water conservation education and 
information. 5 points 

(d) An applicant demonstrates it has established a 
water conservation incentive rate structure; 
created incentives 

for new or replacement installation of low flow 
faucets, shower heads, and toilets; or has a 
water reclamation 

or reuse system. 5 points 

(2) An applicant may also receive a maximum of 25 bonus 
points for meeting the following criteria: 

(a) An applicant demonstrates that it has adopted 



a comprehensive land-use plan that meets the 
requirements of G.S. 155H, Article 18 or G.S. 
160 A, Article 19, or applicant is a local 
government unit that is not authorized to adopt 
a comprehensive land-use plan but that is 
located in whole or in part in another local 
government unit that has adopted a 
comprehensive land-use plan, and that the 
proposed project is consistent with 
the plan. 7 points 

(b) An applicant demonstrates that the 
comprehensive land-use plan exceeds the 
minimum state standards for the protection of 
water resources. 8 points 

(c) An applicant demonstrates that actions have 
been taken toward implementation of the 
comprehensive land-use plan. These actions 
may include the adoption of a zoning 
ordinance or any other measure that 
significantly contributes to the implementation 
of the comprehensive land-use plan. 10 points 

(3) An applicant may receive a maximum of 20 bonus 
points for the following criteria: 

(a) An apphcant has developed a capital 
improvement plan as defined in S.L. 1998, 
c. 132 15 points 

(b) Proposed project is consistent with the water 
supply watershed protection requirements of 
G.S. 143-214.5. 5 points 

(4) An applicant may receive a maximum of 20 bonus 
points for the following criteria: 

(a) An applicant demonstrates voluntary water 
supply watershed protection activities in excess 
of the minimum requirements of 

G.S. 143-2 14.5, or 15 points 

(b) An applicant demonstrates it has developed a 
volimtary wellhead protection program, 

or 1 5 points 

(c) An applicant demonstrates it has both 
Subparagraphs ( 1 ) and (2) of this 
Paragraph. 20 points 

Authority S.L. 1998, c. 132, s. 10; 
Amended Ejf. August 1, 2000. 

SECTION .0900 - PRIORITIES 

.0902 ASSIGNMENT OF CATEGORY TO 
WASTEWATER APPLICATIONS 

(a) Applications for loans for wastewater projects will be 
assigned a category as follows, during review of the 
applications: 

(I) All applications for projects that are under orders, 
under moratorium, at or above 80% of permitted 
capacity during the previous calendar year, 
experiencing excessive infiltration/inflow, or that 
would qualify for an Emergency Loan imder Rule 
.0204 of this Subchapter, and that have submitted 



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final project plans and specifications for review and 
approval by the receiving agency, shall be placed in 
Category 1. 

(2) All applications for projects that are under orders, 
under moratorium, at or above 80% permitted 
capacity during the previous calendar year, 
experiencing excessive infiltration/inflow, or that 
would qualify for an Emergency Loan under Rule 
.0204 of this Subchapter that have not submitted final 
project plans and specifications for review and 
approval by the receiving agency shall be placed in 
Category 2, 

(3) AU applications for projects for expanding 
infi-astructure primarily to support additional 
development and that have submitted final project 
plans and specifications for review and approval by 
the receiving agency, shall be placed in Category 3. 

(4) AU applications for projects for expanding 
infi-astructure primarily to support additional 
development that have not submitted final project 
plans and specifications for review and approval by 
the receiving agency shall be placed in Category 4. 

(b) All applications in Category 1 for a specific wastewater 
account will be fiinded before applications in Category 2 in the 
same account. All applications in Category 2 for a specific 
wastewater account will be funded before applications in 
Category 3 in the same account. All applications in Category 3 
will be funded before applications in Category 4 in the same 
account. 

Authority S.L. 1998, c. 132, s. 10; 
Amended Effi August 1, 2000. 

SECTION .1000 - LOAN AWARD, COMMITMENT, 
AND DISBURSEMENT 

.1004 DISBURSEMENT OF LOANS 

(a) Disbursement of loan monies shall be made at intervals as 
work progresses and expenses are incurred. No disbursement 
shall be made until the receiving agency receives documentation 
of incurred costs. At no time shall disbursement exceed the 
allowable costs which have been incurred at that time. 

(b) Project inspection shall confirm work progress, and a 
final inspection is required prior to the final disbursement of 
loan monies. 

(c) No disbursement shall be made until the receiving agency 
receives documentation of compliance with the verifiable 
percentage goal for participation by minority businesses in 
accordance with G.S. 143-128. 

(d) The receiving agency shall notify the Office of the 
Controller of the Department of Environment and Natural 
Resources to make loan disbursements. A check in the amount 
of the disbursement authorized by the receiving agency shall be 
written to the recipient by the Office of the Controller. 

Authority S.L. 1998, c. 132, s. 10; 
Amended Eff. August 1, 2000. 



CHAPTER 2 - ENVIRONMENTAL MANAGEMENT 

SUBCHAPTER 2D - AIR POLLUTION CONTROL 
REQUIREMENTS 

SECTION .0500 - EMISSION CONTROL STANDARDS 

.0541 CONTROL OF EMISSIONS FROM ABRASIVE 
BLASTING 

(a) For the purpose of this Rule, the following definitions 
apply: 

(1) "Abrasives" means any material used in abrasive 
blasting operations. 

(2) "Abrasive blasting" means the operation of cleaning 
or preparing a surface by forcibly propelling a stream 
of abrasive material against the surface. Sandblasting 
is one form of abrasive blasting. 

(3) "Abrasive blasting equipment" means any equipment 
used in abrasive blasting operations. 

(4) "Fugitive dust emissions" means emissions of 
particulate matter into the outdoor atmosphere that is 
not vented or captured by a stack or chimney. 

(5) "Building" means a structure with four or more sides 
and a roof that is used, in whole or in part, to house or 
contain abrasive blasting. 

(b) The owner or operator shall ensure that any abrasive 
blasting operation conducted outside a building or conducted 
indoors and vented to the atmosphere is performed in 
accordance with the requirements set forth in 15A NCAC 2D 
.0521, Control of Visible Emissions. For the purposes of this 
Rule, the visible emissions reading for abrasive blasting 
performed outside a building shall be taken at a spot 
approximately one meter above the point of abrasive blasting 
with a viewing distance of approximately five meters. 

(c) Except as provided in Paragraph (d) of this Rule, all 
abrasive blasting operations shall be conducted within a 
building. 

(d) An abrasive blasting operation conducted under one or 
more of the following conditions is not required to be conducted 
within a building; 

( 1 ) when the item to be blasted exceeds eight feet in any 
dimension; 

(2) when the surface being blasted is situated at its 
permanent location or not fiirther away from its 
permanent location than is necessary to allow the 
surface to be blasted; or 

(3) when the abrasive blasting operation is conducted at 
a private residence or farm and tJie visible emissions 
created by this abrasive blasting operation do not 
migrate beyond the property boundary of the private 
residence or farm on which the abrasive blasting 
operation is being conducted. 

(e) The owner or operator of any abrasive blasting operation 
conducted in accordance with Subparagraphs (d)(1) and (d)(2) 
of this Rule, outside a building, shall take appropriate measures 
to ensure that the fugitive dust emissions created by the abrasive 
blasting operation do not migrate beyond the property 
boundaries in which the abrasive blasting operation is being 



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conducted. Appropriate measures include the following: 

(1) the addition of a suppressant to the abrasive blasting 
material; 

(2) wet abrasive blasting; 

(3) hydroblasting; 

(4) vacuum blasting; 

(5) shrouded blasting; or 

(6) shrouded hydroblasting. 



Authority G.S. 
215.108(d)(1): 
Eff. July 1, 2000. 



143-2 15.3(a)(1): 143-215. 108(c)(7): 143- 



SECTION .1800 - CONTROL OF ODORS 

.1801 DEFINITIONS 

For the purpose of this Section, the following definitions 
apply: 

(1) "Animal operation" means animal operation as 
defined in G.S. 143-215. lOB. 

(2) "Child care center" means child care centers as 
defined in G.S. 110-86 licensed under G. S. 110, 
Article 7. 

(3) "Construction" means any physical change (including 
fabrication, erection, installation, replacement, 
demolition, excavation, or other modification) at any 
contiguous area under common control. 

(4) "Control technology" means economically feasible 
control devices installed to effectively reduce 
objectionable odors from animal operations. 

(5) "Existing animal operation" means an animal 
operafion that is in operation or commences 
construction on or before February 28, 1999. 

(6) "Historic properties" means historic properties 
acquired by the State pursuant to G.S. 12 1-9 or listed 
in the North Carolina Register of Historic Places 
pursuant to G.S. 121-4.1. 

(7) "Modified animal operation" means an animal 
operation that commences construction after February 
28, 1 999, to increase the steady state live weight that 
can be housed at that animal operation. Modified 
animal operation does not include renovating existing 
bams, relocating bams, or replacing existing lagoons 
or bams if the new bam or lagoon is no closer to the 
nearest property and if the new bam or lagoon does 
not increase the steady state live weight than can be 
housed at that animal operation.. 

(8) "New animal operation" means an animal operation 
that commences constmction after Febmary 28, 1 999. 

(9) "Objectionable odor" means any odor present in the 
ambient air that by itself, or in combination with other 
odors, is or may be harmful or injurious to human 
health or welfare, or may unreasonably interfere with 
the comfortable use and enjoyment of life or property. 
Odors are harmfiil or injurious to human health if 
they tend to lessen human food and water intake, 
interfere with sleep, upset appetite, produce irritation 
of the upper respiratory tract, or cause symptoms of 



nausea, or if their chemical or physical nature is, or 
may be, detrimental or dangerous to human health. 

(10) "Occupied residence" means occupied residence as 
defined in G.S. 106-802. 

(11) "State Parks" means State Parks as defined in G.S. 
113-44.9. 

(12) "Technologically feasible" means that an odor control 
device or a proposed solution to an odor problem has 
previously been demonstrated to accomplish its 
intended objective, and is generally accepted within 
the technical community. It is possible for 
technologically feasible solutions to have 
demonstrated their suitabihty on similar, but not 
identical, sources for which they are proposed to 
control. 

Authority G.S. 143-215. 3(a)(1): 143-215. 107(a)(l 1): 143-213: 
Eff. My I 2000. 

.1802 CONTROL OF ODORS FROM ANIMAL 
OPERATIONS USING LIQUID ANIMAL 
WASTE MANAGEMENT SYSTEMS 

(a) Purpose. The purpose of this Rule is to control 
objectionable odors from animal operations beyond the 
boundaries of animal operations. 

(b) Applicability. This Rule shall apply to all animal 
operations. 

(c) Required management practices. All animal operations 
shall be required to implement applicable management practices 
for the control of odors as follows: 

(1) The carcasses of dead animals shall be disposed of 
within 24 hours after becoming aware of the death of 
the animal according to the methods approved by the 
State Veterinarian for disposal of dead domesticated 
animals under G.S. 106-403; 

(2) Waste from animal wastewater apphcafion spray 
systems shall be applied in such a manner and under 
such conditions to prevent drift from the irrigation 
field of the wastewater spray beyond the boundary of 
the animal operation, except waste from application 
spray systems may be applied in an emergency to 
maintain safe lagoon freeboard if the owner or 
operator notifies the Department and resolves the 
emergency with the Department as written in Section 
III. 6 of the Swine Waste Operafion General Permit; 

(3) Animal wastewater apphcafion spray system intakes 
shall be located near the liquid surface of the animal 
wastewater lagoon; 

(4) Ventilation fans shall be maintained according to the 
manufacturer's specifications; and 

(5) Animal feed storage containers located outside of 
animal containment buildings shall be covered except 
when necessary to remove or add feed; this 
Subparagraph does not apply to the storage of silage 
or hay or to commodity boxes with roofs; and 

All animal operations shall be in compliance with this Paragraph 
by June 1, 1999. 

(d) Odor management plan for existing animal operations for 



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swine. Animal operations for swine that meet the criteria in the 
table in this Paragraph shall submit an odor management plan to 
the Director according to the schedule in the table in this 
Paragraph. The odor management plan shall describe how odors 
are currently being controlled and how these odors will be 



controlled in the future. The odor management plan shall 
contain the elements described in Rule . 1 803(a) of this Section 
The animal operation shall be required to submit its odor 
management plan only once. 



100 poimds steady 

state live weight of 

swuie 


Distance in feet to the boundary of the nearest 

neighboring occupied property with an inhabitable 

structure, business, school, hospital, church, outdoor 

recreational facility, national park. State Park, historic 

property, or child care center 


Date by when the odor 

management plan is to be 

submitted 


at least 


but less 
than 


10,000 
20,000 
40,000 


20,000 
40,000 


less than or equal to 3,000 
less than or equal to 4,000 
less than or equal to 5,000 


January 15,2002 

July 15,2001 
January 15,2001 



For the purposes of this Rule, the distance shall be measured 
from the edge of the bam or lagoon, whichever is closer, to the 
boundary of the neighboring occupied property with an 
inhabitable structure, business, school, hospital, church, outdoor 
recreational facility, national park. State Park, historic property, 
or child care center. All animal operations for swine that are of 
the size in the table in this Paragraph shall submit by the date 
specified in this table either an odor management plan or 
documentation that no neighboring occupied property with an 
inhabitable structure, business, school, hospital, church, outdoor 
recreational facility, national park. State Park, historic property, 
or child care center is within the distances specified in the table 
as of the date that the submittal is due. After July 15, 2002, the 
Director may require existing animal operations for swine with 
a steady state hve weight of swine between 1,000 to 10,000 
hundredweights to submit an odor management plan if the 
Director determines that these animal operations may cause or 
contribute to an objectionable odor. The Director may require 
an existing animal operation to submit a best management plan 
under Paragraph (h) of this Rule if the existing animal operation 
fails to submit an odor management plan by the schedule in this 
Paragraph of this Rule, 
(e) Location of objectionable odor determinations. 
(1) For an existing animal operation that does not meet 
the following siting requirements: 

(A) at least 1500 feet from any occupied residence 
not owned by the owner of the anunal 
operation; 

(B) at least 2500 feet from any school, hospital, 
church, outdoor recreation facility, national 
park; State Park, historic property, or child 
care center; and 

(C) at least 500 feet from any property boundary; 
objectionable odors shall be determined at 
neighboring occupied property not owned by the 
owner of the animal operation, busmesses, schools, 
hospitals, churches, outdoor recreation facilities. 



national parks. State Parks historic properties, or child 
care centers that are affected. 
(2) For a new animal operation or existing animal 
operation that meets the siting requirements in 
Subparagraph (1) of this Paragraph, objectionable 
odors shall be determined beyond the boundary of the 
ammal operation. 

(f) Complaints. The Director shall respond to complaints 
about objectionable odors from animal operations as follows: 

(1) Complaints shall be investigated to the extent 
practicable. 

(2) Complaints may be used to assist in determination of 
a best management plan failure or a control 
technology failure. 

(3) The Director shall respond to complaints within 30 
days. 

(4) Complaint response shall at least include a vmtten 
response of the Director's evaluation of the complaint. 

(5) The investigation of a complaint shall be completed 
as expeditiously as possible considering the 
meteorology activities at the animal operation, and 
other conditions occurring at the time of the 
complain. 

(g) Determination of the existence of an objectionable odor. 
In deciding if an animal operation is causing or contributing to 
an objectionable odor, the Director may consider one or more of 
the following; 

(1) the nature, intensity, frequency, pervasiveness, and 
duration of the odors from the animal operation; 

(2) complaints received about objectionable odors from 
the animal operation; 

(3) emissions from the animal operation of knovro odor 
causing compounds, such as ammonia, total volatile 
organics, or hydrogen sulfide or other sulfur 
compounds, at levels that could cause or contnbute to 
an objectionable odor, 

(4) any epidemiological studies associating health 



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problems with odors from the animal operation or 
documented health problems associated with odors 
from the animal operation provided by the State 
Health Director; or 
(5) any other evidence, including records maintained by 
neighbors, that show that the animal operation is 
causing or contributing to an objectionable odor, 
(h) Requirement for a best management plan foT controlling 
odors from existing animal operations. If the Director finds that 
an existing animal operation is causing or contributing to an 
objectionable odor, the owner or operator of the animal 
operation shall: 

( 1 ) submit to the Director as soon as practical, but not to 
exceed 90 days afler receipt of written notification 
from the Director that the animal operation is causing 
or contributing to an objectionable odor, a best 
management plan for odor control as described in 
Rule .1803 of this Section; and 

(2) be in compliance with the terms of the plan within 30 
days after the Director approves the best management 
plan (comphance with an approved compliance 
schedule in the best management plan is deemed to be 
in compliance with the plan), 

(i) Requirement for amendment to best management plan. 
No later than 60 days from completion of a compliance schedule 
in an approved best management plan or if the best management 
plan contains no comphance schedule, no later than 60 days 
from the implementation date of the best management plan, the 
Director shall determine whether the plan has been properly 
implemented. If the Director determines that a plan submitted 
under Paragraph (h) of this Rule does not control objectionable 
odors from the animal operation, the Director shall require the 
owner or operator of the animal operation to amend the plan to 
incorporate additional or alternative measures to control 
objectionable odors from the animal operation. The owner or 
operator shall: 

(1) submit a revised best management plan to the 
Director as soon as practical but not later than 60 
days after receipt of written notification from the 
Director that the plan is inadequate; and 

(2) be in comphance with the revised plan within 30 days 
after the Director approves the revisions to the best 
management plan (compliance with an approved 
comphance schedule in the best management plan is 
deemed to be in compliance with the plan). 

(j) Plan failure. Any of the following conditions shall 
constitute failure of a best management plan: 

(1) failing to submit the initial best management plan 
required under Paragraph (h) of this Rule within 90 
days of receipt of written notification from the 
Director that the animal operation is causing or 
contributing to an objectionable odor; 

(2) failing to submit a revised best management plan 
required under Paragraph (i) of this Rule within 60 
days of receipt of written notification from the 
Director that the animal operation is causing or 
contributing to an objectionable odor; 

(3) failing to correct all deficiencies in a subnutted best 



management plan under Rule .1803(c) of this Section 
within 30 days of receipt of written notification from 
the Director to correct these deficiencies; 

(4) failing to implement the best management plan after 
it has been approved; or 

(5) finding by the Director, using the criteria under 
Paragraph (g) of this Rule, that, after the best 
management plan has been implemented and revised 
no more than one time (voluntary revisions and 
revisions made pursuant to 15A NCAC 2D .1803(c) 
shall not be counted as revisions under this 
Subparagraph); the best management plan does not 
adequately control objectionable odors from the 
animal operation and will not adequately control 
objectionable odors even with further amendments. 

(k) Requirements for control technology. If a plan failure 
occurs, the Director shall require the owner or operator of the 
animal operation to install control technology to control odor 
from the aiumal operation. The owner or operator shall submit 
within 90 days from receipt of written notification from the 
Director of a plan failure, a permit application for control 
technology and an installation schedule. If the owner or 
operator demonstrates to the Director that a permit appUcation 
cannot be submitted within 90 days, the Director may extend the 
time for submittal up to an additional 90 days. Control 
technology shall be determined according to Subparagraph (1) 
of this Paragraph. The installation schedule shall contain the 
increments of progress described in Subparagraph (2) of this 
Paragraph. The owner or operator may at any time request 
adjustments in the installation schedule and shall in his request 
explain why the schedule cannot be met. If the Director finds 
that the reason for not meeting the schedule is valid, the Director 
shall revise the installation schedule as requested; however, the 
Director shall not extend the final compliance date beyond 24 
months from the date that the permit was first issued for the 
control technology. The owner or operator shall certify to the 
Director vrithin five days after the deadhne for each increment 
of progress described in Subparagraph (2) of this Paragraph 
whether the required increment of progress has been met. 

(1) Control technology. The owner or operator of an 
animal operation shall identify control technologies 
that are technologically feasible for his animal 
operation and shall select the control technology or 
control technologies that results in the greatest 
reduction of odors considering human health, energy, 
enviroimiental, and economic impacts and other costs. 
The owner or operator shall explain the reasons for 
selecting the control technology or control 
technologies. If the Director finds that the selected 
control technology or control technologies will 
effectively control odors following the procedures in 
15A NCAC 2Q .0300 or .0500, he shall approve die 
installation of the control technology or control 
technologies for this animal operation. The owner or 
operator of the animal operation shall comply with all 
terms and conditions in the permit. 

(2) Installation schedule. The installation schedule for 
control technology shall contain the following 



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increments of progress: 

(A) a date by which contracts for odor control 
technology shall be awarded or orders shall be 
issued for purchase of component parts; 

(B) a date by which on-site construction or 
installation of the odor control technology shall 
begin; 

(C) a date by which on-site construction or 
installation of the odor control technology shall 
be completed, and 

(D) a date by which final compliance shall be 
achieved. 

Control technology shall be in place and operating as 

soon as practical but not to exceed 12 months from 

the date that the permit is issued for control 

technology. 

(1) New or modified animal operations. This Paragraph does 

not apply to activities exempted from the moratorium on 

construction or expansion of swine farms in S.L. 1997, c. 458, 

s. 1 1 provided that the owner or operator demonstrates to the 

Director that the activity will not result in an objectionable odor. 

( 1 ) Before beginning construction, the owner or operator 
of a new or modified animal operation raising or 
producing swine shall submit and have an approved 
best management plan and shall meet of the 
following: A house or lagoon that is a component of 
an animal operation shall be constructed: 

(A) at least 1 500 feet from any occupied residence 
not owned by the owner of the animal 
operation, 

(B) at least 2500 feet from any school, hospital, 
church, outdoor recreation facility, national 
park. State Park, historic property, orchild care 
center; and 

(C) at least 500 feet from any property boundary; 

(2) Before begimung construction, the owner or operator 
of a new or modified animal operation other than 
swine shall submit and have an approved best 
management plan. 

(3) For new or modified animal operations raising or 
producing swine, the outer perimeter of the land area 
onto which waste is applied that is a component of an 
animal operation shall be' 

(A) at least 75 feet from any boundary of property 
on which an occupied residence not owned by 
the owner of the animal operation is located, 
and 

(B) at least 200 feet from any occupied residence 
not owned by the owner of the animal 
operation. 

(4) The Director shall either approve or disapprove the 
best management plan submitted under this Paragraph 
within 90 days after receipt of the plan If the 
Director disapproves the plan, he shall identify the 
plan's deficiency. 

Authority G.S. 143-215. 3(a)(1); N3-215.107(a)(l 1): 143- 
215.108(a): 



Ejf. July 1. 2000. 

CHAPTER 3 - MARINE FISHERIES 

SUBCHAPTER 31 - GENERAL RULES 

SECTION .0100 - GENERAL RULES 

.0101 DEFINITIONS 

(a) All definitions set out in G.S. 1 13, Subchapter IV apply to 
this Chapter. 

(b) The following additional terms are hereby defined: 

(1) Commercial Fishing Equipment or Gear. All fishing 
equipment used in coastal fishing waters except: 

(A) Seines less than 30 feet in length; 

(B) Collapsible crab traps, a trap used for taking 
crabs with the largest open dimension no larger 
than 18 inches and that by design is collapsed 
at all times when in the water, except when it 
is being retrieved from or lowered to the 
bottom; 

(C) Spears, Hawaiian slings or similar devices 
which propel pointed implements by 
mechanical means, including elastic tubing or 
bands, pressurized gas or similar means; 

(D) A dip net having a handle not more than eight 
feet in length and a hoop or frame to which the 
net is attached not exceeding 60 inches along 
the perimeter; 

(E) Hook-and-line and bait-and-line equipment 
other than multiple-hook or multiple-bait 
trotiine; 

(F) A landing net used to assist in taking fish when 
the initial and primary method of taking is by 
the use of hook and line; 

(G) Cast Nets; 

(H) Gigs or other pointed implements which are 
propelled by hand, whether or not the 
implement remains in the hand; and 
(I) Up to two minnow traps. 

(2) Fixed or stationary net. A net anchored or staked to 
the bottom, or some structure attached to the bottom, 
at both ends of the net. 

(3) Mesh Length. The diagonal distance from the inside 
of one knot to the outside of the other knot, when the 
net is stretched hand-tight. 

(4) Possess. Any actual or constructive holding whether 
under claim of ownership or not 

(5) Transport. Ship, carry, or cause to be carried or 
moved by public or private carrier by land, sea, or air. 

(6) Use. Employ, set, operate, or permit to be operated 
or employed. 

(7) Purse Gill Nets. Any gill net used to encircle fish 
when the net is closed by the use of a purse line 
through rings located along the top or bottom line or 
elsewhere on such net. 

(8) Gill Net A net set vertically in the water to capture 
fish by entanglement by the gills in its mesh as a 



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APPROVED RULES 



result of net design, construction, mesh size, webbing diameter 

or method in which it is used. 

(9) Seine. A net set vertically in the water and pulled by 
hand or power to capture fish by encirclement and 
confining fish within itself or against another net, the 
shore or bank as a result of net design, construction, 
mesh size, webbing diameter, or method in which it is 
used. 

(10) Internal Coastal Waters or Internal Waters. All 
coastal fishing waters except the Atlantic Ocean. 

(11) Channel Net. A net used to take shrimp which is 
anchored or attached to the bottom at both ends or 
with one end anchored or attached to the bottom and 
the other end attached to a boat. 

(12) Dredge. A device towed by engine power consisting 
of a frame, tooth bar or smooth bar, and catchbag 
used in the harvest of oysters, clams, crabs, scallops, 
or conchs. 

(13) Mechanical methods for clamming. Includes, but not 
limited to, dredges, hydraulic clam dredges, stick 
rakes and other rakes when towed by engine power, 
patent tongs, kicking with propellers or deflector 
plates with or without trawls, and any other method 
that utihzes mechanical means to harvest clams. 

(14) Mechanical methods for oystering. Includes, but not 
limited to, dredges, patent tongs, stick rakes and other 
rakes when towed by engine power and any other 
method that utilizes mechanical means to harvest 
oysters. 

(15) Depuration. Purification or the removal of 
adulteration fi-om live oysters, clams, and mussels by 
any natural or artificially controlled means. 

(16) Peeler Crab. A blue crab that has a soft shell 
developing under a hard shell and having a definite 
pink, white, or red line or rim on the outer edge of the 
back fin or flipper. 

(17) Length of finfish. 

(A) Total length is determined by measuring along 
a straight line the distance firom the tip of the 
snout with the mouth closed to the tip of the 
compressed caudal (tail) fin. 

(B) Fork length is determined by measuring along 
a straight line the distance from the tip of the 
snout with the mouth closed to the middle of 
the fork in the caudal (tail) fin. 

(C) Fork length for billfish is measured from the 
tip of the lower jaw to the middle of the fork of 
the caudal (tail) fin. 

(18) Licensee. Any person holding a valid license from 
the Department to take or deal in marine fisheries 
resources. 

(19) Aquaculture operation. An operation that produces 
artificially propagated stocks of marine or estuarine 
resources or obtains such stocks from authorized 
sources for the purpose of rearing in a controlled 
environment. A controlled environment provides and 
maintains throughout the rearing process one or more 
of the following: predator protection, food, water 



circulation, salinity, or temperature confrols util isin g 
proven technology not found in the natural 
environment. 

(20) Critical habitat areas. The fragile estuarine and 
marine areas that support juvenile and adult 
populations of economically important seafood 
species, as well as forage species important in the 
food chain. Critical habitats include nursery areas, 
beds of submerged aquatic vegetation, shellfish 
producing areas, anadromous fish spawning and 
anadromous fish nursery areas, in all coastal fishing 
waters as determined through marine and estuarine 
survey sampling. Critical habitats are vital for 
portions, or the entire life cycle, including the early 
grovrth and development of important seafood 
species. 

(A) Beds of submerged aquatic vegetation are 
those habitats in pubhc trust and estuarine 
waters vegetated with one or more species of 
submerged vegetation such as eelgrass 
(Zostera marina), shoalgrass (Halodule 
wrightii) and widgeongrass (Ruppia maritima). 
These vegetation beds occur in both subtidal 
and intertidal zones and may occur in isolated 
patches or cover extensive areas. In either 
case, the bed is defined by the presence of 
above-ground leaves or the below-ground 
rhizomes and propagules together with the 
sediment on which the plants grow. In 
defining beds of submerged aquatic vegetation, 
the Marine Fisheries Commission recognizes 
the Aquatic Weed Control Act of 1991 (G.S. 
113A-220 et. seq.) and does not intend the 
submerged aquatic vegetation definition and its 
implementing rules to apply to or conflict with 
the non-development control activities 
authorized by that Act. 

(B) Shellfish producing habitats are those areas in 
which economically important shellfish, such 
as, but not limited to clams, oysters, scallops, 
mussels, and whelks, whether historically or 
currently, reproduce and survive because of 
such favorable conditions as bottom type, 
salinity, currents, cover, and cultch. Included 
are those shellfish producing areas closed to 
shellfish harvest due to pollution. 

(C) Anadromous fish spawning areas are defined 
as those areas where evidence of spawning of 
anadromous fish has been documented by 
direct observation of spawning, capture of 
running ripe females, or capture of eggs or 
early larvae. 

(D) Anadromous fish nursery areas are defined as 
those areas in the riverine and estuarine 
systems utilized by post-larval and later 
juvenile anadromous fish. 

(21) Intertidal Oyster Bed. A formation, regardless of size 
or shape, formed of shell and live oysters of varying 



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14:17 



APPROVED RULES 



(22) 



(23) 



(24) 



(25) 



(26) 



density. 

North Carolina Trip Ticket. Multiple-part fonn 
provided by the Department to fish dealers who are 
required to record and report transactions on such 
forms. 

Transaction. Act of doing business such that fish are 
sold, offered for sale, exchanged, bartered, distributed 
or landed. The point of landing shall be considered a 
transaction when the fisherman is the fish dealer. 
Live rock. Living marine organisms or an assemblage 
thereof attached to a hard substrate including dead 
coral or rock (excluding mollusk shells). For 
example, such hving marine organisms associated 
with hard bottoms, banks, reefs, and live rock may 
include, but are not limited to: 

(A) Animals: 

(i) Sponges (Phylum Porifera); 
(ii) Hard and Soft Corals, Sea Anemones 
(Phylum Cnidaria): 
(I) Fire corals (Class Hydrozoa); 
(II) Gorgonians, whip corals, sea 
pansies, anemones, Solenastrea 
(Class Anthozoa); 
(iii) Bryozoans (Phylum Bryozoa); 
(iv) Tube Worms (Phylum Annelida): 
( I) Fan worms (Sabellidae); 
(II) Feather duster and Christmas 

tree worms (Serpuhdae); 
(III) Sand castle worms 
(Sabellaridae); 
(v) Mussel banks (Phylum 

Mollusca:Gastropoda); 
(vi) Colonial barnacles (Arthropoda: 
Crustacea: Megabalanus sp.). 

(B) Plants: 

(i) Coralline algae (Division Rhodophyta); 

(ii) Acetabularia sp., Udotea sp., Halimeda 

sp , Caulerpa sp. (Division 

Chlorophyta); 

(iii) Sargassumsp.,Dictyopterissp.,Zonaria 

sp. (Division Phaeophyta). 



Coral 

(A) 

(B) 



Fire corals and hydrocorals (Class Hydrozoa); 

Stony corals and black corals (Class Anthozoa, 

Subclass Scleractinia); 
(C) Octocorals; Gorgonian corals (Class Anthozoa, 

Subclass Octocorallia): 
(i) Sea fans (Gorgonia sp.); 

(ii) Sea whips (Leptogorgia sp. and 
Lophogorgia sp ); 

(iii) Sea pansies (Renilla sp.). 
Shellfish production on leases and fi"anchises: 

(A) The culture of oysters, clams, scallops, and 
mussels, on shellfish leases and franchises 
from a sublegal harvest size to a marketable 
size. 

(B) The transplanting (relay) of oysters, clams, 
scallops and mussels from designated areas 



(27) 



(28) 



(29) 



(30) 



(31) 

(32) 
(33) 



(34) 



(35) 



(36) 

(37) 
(38) 
(39) 

(40) 



closed due to pollution to shellfish leases and 
fi'anchises in open waters and the natural 
cleansing of those shellfish. 
Shellfish marketing from leases and franchises. The 
harvest of oysters, clams, scallops, mussels, from 
privately held shellfish bottoms and lawful sale of 
those shellfish to the public at large or to a licensed 
shellfish dealer. 

Shellfish planting effort on leases and franchises. 
The process of obtaining authorized cultch materials, 
seed shellfish, and polluted shellfish stocks and the 
placement of those materials on privately held 
shellfish bottoms for increased shellfish production. 
Pound Net. A fish trap consisting of a holding pen, 
one or more enclosures, and a lead or leaders. The 
lead(s), enclosures, and holding pen are not conical, 
nor are they supported by hoops or frames. 
Educational Institution. A college, university or 
community college accredited by a regional 
accrediting mstitution. 

Long Haul Operations. A seine towed between two 
boats. 

Swipe Net Operations. A seine towed by one boat. 
Bunt Net. The last encircling net of a long haul or 
swipe net operation constructed of small mesh 
webbing. The bunt net is used to form a pen or pound 
from which the catch is dipped or bailed. 
Responsible party. Person who coordinates, 
supervises or otherwise directs operations of a 
business entity, such as a corporate officer or 
executive level supervisor of business operations and 
the person responsible for use of the issued license in 
compliance with applicable laws and lules. 
New fish dealer. Any fish dealer making apphcation 
for a fish dealer hcense who did not possess a vahd 
dealer license for the previous license year in that 
name. For purposes of hcense issuance, adding new 
categories to an existmg fish dealers license does not 
constitute a new dealer. 

Tournament Organizer. The person who coordinates, 
supervises or otherwise directs a recreational fishing 
tournament and is the holder of the Recreational 
Fishing Tournament License. 
Holder. A person who has been lawfully issued in 
their name a hcense, permit, fianchise, lease, or 
assignment. 

Recreational Piupose. A fishing activity has a 
recreational purpose if it is not a commercial fishing 
operation as defined in G.S 1 13-168. 
Recreational Possession Limit. Includes, but is not 
limited to, restrictions on size, quantity, season, tune 
period, area, means, and methods where take or 
possession is for a recreational purpose 
Attended. Being in a vessel, in the water or on the 
shore immediately adjacent to the gear and 
immediately available to work the gear and within 1 00 
yards of any gear m use by that person at all times. 
Attended does not include being in a building or 



14:17 



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1548 



APPROVED RULES 



stracture. 

(41) Commercial Quota Total quantity offish allocated 
for harvest taken by commercial fishing operations. 

(42) Recreational Quota. Total quantity of fish allocated 
for harvest taken for a recreational purpose. 

(43) Office of the Division. Physical locations of the 
Division conducting license transactions in the cities 
of Wilmington, Washington, Morehead City, 
Columbia, Wanchese and Elizabeth City, North 
Carolina. Other businesses or entities designated by 
the Secretary to issue Recreational Commercial Gear 
Licenses are not considered Offices of the Division. 

(44) Land; 

(A) For purposes of trip tickets, when fish reach a 
hcensed seafood dealer, or where the 
fisherman is the dealer, when the fish reaches 
the shore or a structure connected to the shore. 

(B) For commercial fishing operations, when fish 
reach the shore or a structure connected to the 
shore. 

(C) For recreational fishing operations, when fish 
are retained in possession by the fisherman. 

(45) Master. Captain of a vessel or one who commands 
and has control, authority, or power over a vessel. 

(46) Regular Closed Oyster Season. The regular closed 
oyster season occurs from May 1 5 through October 
15, unless amended by the Fisheries Director through 
proclamation authority. 

(47) Assignment. Temporary transferral to another person 
of privileges under a license for which assignment is 
permitted. The person assigning the license delegates 
the privileges permitted under the license to be 
exercised by the assignee, but retains the power to 
revoke the assignment at any time, is still the 
responsible party for the hcense. 

(48) Transfer. Permanent transferral to another person of 
privileges under a license for which transfer is 
permitted. The person transferring the hcense retains 
no rights or interest under the hcense transferred. 

Authority G.S. 113-134; 143B-289.52: 
Amended EJf. August 1, 2000. 

.0105 LEAVING DEVICES UNATTENDED 

(a) It is unlawful to leave stakes, anchors, nets, buoys, or 
floatmg devices in any coastal fishing waters when such devices 
are not being employed in fishing operations except as othenvise 
provided by rule or General Statute. 

(b) It is unlawful to leave pots in any coastal fishing waters 
for more than seven consecutive days, when such pots are not 
being employed in fishing operations, except upon a timely and 
sufficient showing ofhardship as defined in Subparagraph (b)(2) 
of this Rule or as otherwise provided by General Statute. 

(1) Agents of the Fisheries Director may tag pots with a 
device approved by the Fisheries Director to aid and 
assist in the investigation and identification of 
unattended pots. Any such device attached to a pot 
by agents of the Fisheries Director must be removed 



by the individual utilizing the pot within days of 
attachment in order to demonstrate that the pot is 
being employed in fishing operations. 

(2) For the purposes of Paragraph (b) of this Rule only, a 
timely and sufficient showing of hardship in a 
commercial fishing operation shall be written notice 
given to the Fisheries Director that a mechanical 
breakdown of the owner's vessel(s) currently 
registered with the Division of Marine Fisheries under 
G.S. 1 13-168.6, or the death, illness or incapacity of 
the owner of the pot or his immediate family, as 
defined in G.S. 113-168, prevented or will prevent 
employing such pots in fishing operations more than 
seven consecutive days. The notice, specifying the 
time needed because ofhardship, shall be received by 
the Fisheries Director before any pot is left in coastal 
fishing waters for seven consecutive days without 
being employed in fishing operations, and shall state, 
in addition to the following, the number and specific 
location of the pots, and the date on which the pots 
will be employed in fishing operations or removed 
irom coastal fishing waters: 

(A) in case of mechanical breakdown, the notice 
shall state the commercial fishing vessel 
registration number, owner's N.C. motor boat 
registration number of the disabled vessel, date 
disabled, arrangements being made to repair 
the vessel or a copy of the work order showing 
the name, address and phone number of the 
repair facility; or 

(B) in case of the death, illness or incapacity of the 
owner of the pot or his immediate family, the 
notice shall state the name of the owner or 
immediate family member, the date of death, 
the date and nature of the illness or incapacity. 
The Fisheries Director may require a doctor's 
verification of the illness or incapacity. 

(3) The Fisheries Director may, by proclamation, modify 
the seven day requirement, if necessary due to 
hurricanes, severe weather or other variable 
conditions. 

Failure to employ in fishing operations or remove from 
coastal fishing waters all pots for which notice ofhardship 
is received under this Rule within 14 days of the expiration 
of the hardship shall be violation of this Rule, 
(c) It is unlawfiil to set or have any fishing equipment in 
coastal fishing waters in violation of this Section or which 
contains edible species of fish unfit for human consumption. 

Authority G.S. 113-134; 113-137; 113-182; 143B-289.52; 
Amended Eff. August 1, 2000. 

.0114 RECORDKEEPING REQUIREMENTS 

(a) It is unlawfiil for a fish dealer: 
( 1 ) To fail to accurately and legibly complete all 
mandatory items on the North Carolina trip ticket for 
each transaction and submit the trip ticket in 
accordance with G.S. 113-168.2; 



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APPROVED RULES 



(2) To fail to provide to the Division a completed no 
transaction form by the tenth day of the following 
month when no transactions occurred for a month; 

(3) To fail to keep all trip tickets and all supporting 
documentation for each transaction including receipts, 
checks, bills of lading, records and accounts for a 
period of not less than three years. 

(b) It is unlawfiil for a seller hcensed under G.S. 1 13, Article 
14A or donor to fail to provide to the fish dealer, at the time of 
transaction, the following: 

(1) A current and valid license or permit to sell the type 
of fish being offered and if a vessel is used, the 
commercial fishing vessel registration; and 

(2) Complete and accurate information on harvest 
method and area of catch and other information 
required by the Division. 

(c) It is unlawful to transport fish without having ready at 
hand for inspection a bill of consignment, bill of lading, or other 
shipping documentation provided by the shipping dealer 
showing thereon the name of the consignee, name of the 
shipper, the date of the shipment, and the quantity of each 
species of fish shipped. In the event the fisherman taking the 
fish is also a dealer and ships from the point of landing, all 
shipping records shall be recorded at the point of landing. 
Fishermen who transport their fish directly to dealers are exempt 
fi-om this Paragraph of this Rule. 

(d) It is unlawfiil to export fish landed in the State in a 
commercial fishing operation without a North Carolina licensed 
fish dealer completing all the record keeping requirements in 
G.S. 113-168.2(i). 

(e) It is unlawfiil to offer for sale fish purchased from a 
hcensed fish dealer without having ready at hand for inspection 
written documentation of purchase showing thereon the name of 
the licensed dealer, name of the purchaser, date of the purchase, 
and the quantity of each species purchased. 

(f) It is unlawful for a holder of a Fish Dealer's License to 
have fish in possession at a licensed location fish without written 
documentation from a licensed fish dealer or a completed North 
Carolina Marine Fisheries Trip Ticket to show the quantity and 
origin of all fish. 

AuthorityG.S. 113-134; 113-168.2; 113-168.3; 113-169.3; 113- 
170; 113-170.3; 113-170.4; 143B-289.52; 
Amended Eff. August 1, 2000. 

.0117 FISHERY RESOURCE GRANT PROGRAM 

AuthorityG.S 113-134; 113-200, 143B-289.52; 1993 (Regular 
Session 1994), c 769, s. 27.17; 
Repealed Ejf. January 1, 2000. 

SUBCHAPTER 3J - NETS, POTS, DREDGES, AND 
OTHER FISHING DEVICES 

SECTION .0100 - NET RULES, GENERAL 

.0104 TRAWL NETS 

(a) It is unlawful to use trawl nets for the taking of finfisb m 



internal waters, except that it shall be permissible to take or 
possess finfish incidental to crab or shrimp trawling in 
accordance with the following limitations: 

(1) It is unlawful to possess aboard a vessel while using 
a trawl in internal waters more than 500 pounds of 
finfish from December 1 through February 28 and 
1,000 pounds of finfish from March 1 through 
November 30. 

(2) The Fisheries Director may, by proclamation, close 
any area to frawling for specific time periods in order 
to secure comphance of this Paragraph. 

(b) It is unlawfiil to use trawl nets: 

(1) In internal coastal waters, between one hour after 
sunset Friday and one hour before sunset on Sunday; 

(2) For the taking of oysters; 

(3) In Albemarle Sound and its tributaries; 

(4) In tiie areas described in 15A NCAC 3R ,0106; 

(5) From December 1 through February 28 from one hour 
after sunset to one hour before sunrise in the 
following areas: 

(A) In Pungo River north of a line beginning at a 
point on Wades Point 35° 23' 17" N - 76° 34' 
30" W; running 060° (M) to a point on 
CurriUick Point 35° 24' 35" N - 76° 32' 19" 
W. 

(B) In Pamlico River west of a line beginning at a 
point on the south shore near Fulford Point 35° 
19' 52" N- 76° 35' 56" W; running 026° (M) 
through Flashing Red Marker " 1 " to a point on 
Wades Point 35° 23' 17" N - 76° 34' 30" W. 

(C) In Bay River west of a line beginning at a point 
onMawPoint35°09'02"N-76°32' 10" W; 
running 021° (M) through Flashing Green 
Marker "1" to a point on Bay Point 35° 11' 
01" N- 76° 31' 35" W. 

(D) In Neuse River west of a line beginning at a 
point off Cheny Pomt 34° 56' 17" N - 76° 48' 
37" W; running 020° (M) tiirough Flashing 
Red Marker "9" to a point off Wilkinson Point 
34° 57' 58" N- 76° 48' 22" W. 

(E) In New River all waters upstream of the N.C. 
Highway 172 Bridge. 

(c) Minimum mesh sizes for shrimp and crab trawls are 
presented in 15A NCAC 3L .0103 and 0202. 

(d) The Fisheries Director may, with prior consent of the 
Marine Fisheries Commission, by proclamation, require bycatch 
reduction devices or codend modifications in trawl nets to 
reduce the catch of finfish that do not meet size limits or are 
unmarketable as individual foodfish by reason of size. 

(e) It IS unlawful to use shrimp trawl for recreational 
purposes unless the trawl is marked by attaching to the cod end 
(tailbag), one floating buoy, any shade of hot pink in color, 
which shall be of solid foam or other solid buoyant matenal no 
less than five inches in diameter and no less than five inches in 
length. The owner shall always be identified on the buoy by 
using an engraved buoy or by attaching engraved metal or 
plastic tags to the buoy. Such identification shall mclude owner's 
last name and initials and if a vessel is used, one of the 



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APPROVED RULES 



following; 

( 1 ) Gear owner's current motor boat registration number, 
or 

(2) Owner's U.S. vessel documentation name. 

(f) It is unlawful to use shrimp trawls for the taking of blue 
crabs in internal waters, except that it shall be permissible to 
take or possess blue crabs incidental to shrimp trawling in 
accordance with the following limitations: 

( 1 ) For individuals using shrimp trawls authorized by a 
Recreational Commercial Gear License, 50 blue 
crabs, not to exceed 100 blue crabs if two or more 
Recreational Commercial Gear License holders are on 
board. 

(2) For commercial operations, crabs may be taken 
incidental to lawful shrimp trawl operations provided 
that the weight of the crabs shall not exceed; 

(A) 50 percent of the total weight of the combined 
crab and shrimp catch; or 

(B) 300 pounds, whichever is greater. 

(3) The Fisheries Director may, by proclamation, close 
any area to trawhng for specific time periods in order 
to secure compliance of this Paragraph. 

Authority G.S. 113-134; 113-173; 113-182; 113-221; 143B- 

289.52; 

Amended Eff. August 1, 2000. 

.0110 SEINES 

It is unlawflil to use seines 30 feet or over in length for 
recreational purposes unless the net is marked by attaching to 
the corkline one floating buoy, any shade of hot pink in color, 
which shall be of solid foam or other solid buoyant material no 
less than five inches in diameter and no less than five inches in 
length. The ovmer shall always be identified on the buoy using 
engraved buoys or by attaching engraved metal or plastic tags to 
the buoy. Such identification shall include owner's last name 
and initials and if a vessel is used, one of the following; 

( 1 ) Gear owner's current motor boat registration number, 
or 

(2) Owner's U.S. vessel documentation name. 

Authority G.S. 113-134; 113-173; 113-182; 143B-289.52; 
Amended Eff. August 1, 2000. 

SECTION .0300 - POTS, DREDGES, AND OTHER 
FISHING DEVICES 

.0301 POTS 

(a) It is unlawful to use pots except during time periods and 
in areas specified herein; 

(1) From November 1 through April 30, except that all 
pots shall be removed from internal waters from 
January 24 through February 7. Fish pots upstream of 
U.S. 17 Bridge across Chowan River and upstream of 
a line across the mouth of Roanoke, Cashie, Middle 
and Eastmost Rivers to the Highway 258 Bridge are 
exempt from the January 24 through February 7 
removal requirement. The Fisheries Director may, by 



proclamation, reopen various waters to the use of pots 
after January 28 if it is determined that such waters 
are free of pots. 

(2) From May 1 through October 31, north and east of 
the Highway 58 Bridge at Emerald Isle; 

(A) In areas described in I5ANCAC 3R .0107(a); 

(B) To allow for the variable spatial distribution of 
Crustacea and finfish, the Fisheries Director 
may, by proclamation, specify time periods for 
or designate the areas described in 15A NCAC 
3R .0 107(b); or any part thereof, for the use of 
pots. 

(3) From May 1 through October 31 in the Atlantic 
Ocean and west and south of the Highway 58 Bridge 
at Emerald Isle in areas and during time periods 
designated by the Fisheries Director by proclamation. 

(b) It is unlawful to use pots; 

( 1 ) in any navigation channel marked by State or Federal 
agencies; or 

(2) in any turning basin maintained and marked by the 
North Carolina Ferry Division. 

(c) It is unJawfiil to use pots in a commercial fishing 
operation unless each pot is marked by attaching a floating buoy 
which shall be of sohd foam or other sohd buoyant material and 
no less than five inches in diameter and no less than five inches 
in length. Buoys may be of any color except yellow or hot pink. 
The owner shall always be identified on the attached buoy by 
using engraved buoys or by engraved metal or plastic tags 
attached to the buoy. Such identification shall include one of 
the following; 

(1) gear owner's current motorboat registration number; 
or 

(2) owner's U.S. vessel documentation name; or 

(3) owner's last name and initials. 

(d) Pots attached to shore or a pier shall be exempt from 
Subparagraphs (a)(2) and (a)(3) of this Rule. 

(e) It is unlawful to use shrimp pots with mesh lengths 
smaller than one and one-fourth inches stretch or five-eights 
inch bar. 

(f) It is unlawflil to use eel pots with mesh sizes smaller than 
one inch by one-half inch unless such pots contain an escape 
panel that is at least four inches square with a mesh size of 1 
inch x 2 inch located in the outside panel of the upper chamber 
of rectangular pots and in the rear portion of cylindrical pots, 
except that not more than two eel pots per fishing operation with 
a mesh of any size may be used to take eels for bait. 

(g) It is unlawful to use crab pots in coastal waters unless 
each pot contains no less than two unobstructed escape rings 
that are at least 2 5/16 inches inside diameter and located in the 
opposite outside panels of the upper chamber of the pot. Peeler 
pots with a mesh size less than I Vi inches shall be exempt from 
the escape ring requirement. The Fisheries Director may, by 
proclamation, exempt the escape ring requirement in order to 
allow the harvest of peeler crabs or mature female crabs and 
may impose any or all of the following restrictions; 

(1) Specify areas, and 

(2) Specify time. 

(h) It is unlawful to use more than 150 pots per vessel in 



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APPROVED RULES 



Newport River. 

(i) It is unlawful to remove crab pots from the water or 
remove crabs from crab pots between one hour after sunset and 
one hour before sunrise. 

(j) User Conflicts: 

( 1 ) The Fisheries Director may, with the prior consent of 
the Marine Fisheries Commission, by proclamation 
close any area to the use of pots in order to resolve 
user conflict. The Fisheries Director shall hold a 
public meeting in the affected area before issuance of 
such proclamation, 

(2) Any person(s) desiring to close any area to the use of 
pots may make such request in writing addressed to 
the Director of the Division of Marine Fisheries. 
Such requests shall contain the following mformation: 

(A) A map of the proposed closed area including 
an inset vicinity map showing the location of 
the proposed closed area with detail sufficient 
to pennit on-site identification and location; 

(B) Identification of the user conflicts causing a 
need for closing the area to the use of pots; 

(C) Recommended method for resolvmg user 
conflicts; and 

(D) Name and address of the person(s) requesting 
the closed area. 

(3) Person(s) making the requests to close an area will be 
required to present their request at the public meeting. 

(4) The Fisheries Director shall deny the request or 
submit a proposed proclamation granting the request 
to the Marine Fisheries Commission for their 
approval. 

(k) It is unlawfiil to use pots to take crabs unless the hne 
connecting the pot to the buoy is non-floating. 

Authority G. S. U3-134; 113-173; 113-182; 113-221; 143B- 

289.52; 

Amended Eff. August 1. 2000. 

.0302 RECREATIONAL USE OF POTS 

(a) It is unlawfiil to use pots for recreational purposes unless 
each pot is marked by attaching one floating buoy, any shade of 
hot pink in color, which shall be of solid foam or other solid 
buoyant material no less than five inches in diameter and no less 
than five inches in length. The owner shall always be identified 
on the buoy usmg engraved buoys or by attaching engraved 
metal or plastic tags to the buoy. Such identification shall 
include the owner's last name and initials and if a vessel is used, 
one of the followmg; 

( 1 ) Gear owner's current motor boat registration number, 
or 

(2) Owner's U.S. vessel documentation name. 

(b) It is unlawful for a person to use more than one crab pot 
attached to the shore along privately owned land or to a privately 
owned pier without possessing a valid Recreational Commercial 
Gear License. 

Authority G.S. 113-134; 113-173; 113-182: 143B-289.52; 
Amended Eff. August 1, 2000. 



.0305 TROTLINES (MULTIPLE HOOK OR 
MULTIPLE BAIT) 

It is unlawful to use multiple hook or multiple bait trotlines 
for recreational purposes unless such trotlines are marked by 
attaching to them at each end one floating buoy, any shade of 
hot pink in color, which shall be of solid foam or other solid 
buoyant material no less than five inches in diameter and no less 
than five inches in length. The owner shall always be identified 
on the buoy by using an engraved buoy or by attachmg engraved 
metal or plastic tags to the buoy. Such identification shall 
include owner's last name and initials and if a vessel is used, one 
of the following; 

( 1 ) Gear owner's current motor boat registration number, 
or 

(2) Ovraer's U.S. vessel documentation name. 

Authority G.S. 113-134; 113-173; 113-182; 143B-289.52; 
Amended Eff. August I, 2000. 

SUBCHAPTER 3K - OYSTERS, CLAMS, SCALLOPS 
AND MUSSELS 

SECTION .0100 - SHELLFISH, GENERAL 

.0101 PROHIBITED SHELLFISH 
AREAS/ACTIVITIES 

(a) It is unlawful to possess, sell, or take oysters, clams or 
mussels from areas which have been designated as prohibited 
(polluted) by proclamation by the Fisheries Director except as 
provided in 15A NCAC 3K .0103, .0104, and .0401. The 
Fisheries Director shall issue such proclamations upon notice by 
the Division of Environmental Health that duly adopted criteria 
for approved shellfish harvest areas have not been met. The 
Fisheries Director may reopen any such closed area upon 
notification from the Division of Environmental Health that duly 
adopted criteria for approved shellfish harvest areas have been 
met. Copies of these proclamations and maps of these areas are 
available upon request at the Division of Marine Fisheries, 344 1 
Arendell St., Morehead City, NC 28557; (252) 726-7021. 

(b) The Fisheries Director may, by proclamation, close areas 
to the taking of oysters, clams, scallops and mussels in order to 
protect the shellfish populations for management purposes or for 
public health purposes not specified in Paragraph (a) of this 
Rule. 

(c) It is unlawful to possess or sell oysters, clams, or mussels 
taken from polluted waters outside North Carolina. 

(d) It is unlawfiil to possess or sell oysters, clams, or mussels 
taken from the waters of North Carolina except as provided in 
G.S. 11 3-169.2(1) without a harvest tag affixed to each container 
of oysters, clams or mussels. Harvest tags shall be affixed by 
the harvester and shall meet the following criteria: 

( 1 ) Tags shall be identified as harvest tags. They shall be 
durable for at least 90 days, water resistant, and a 
minimum of two and five-eighths inches by five and 
one-fourth inches in size. 

(2) Tags shall be securely fastened to the outside of each 
container in which shellstock is transported. Bulk 
shipments in one container and from the same source 



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1552 



APPROVED RULES 



may have one tag with all required information 
attached. Harvesters who are also certified shellfish 
dealers may use only their dealers tag if it contains 
the required information. The required information 
shall be included on all lots of shellfish subdivided or 
combined into market grades or market quantities by 
a harvester or a certified shellfish dealer. 
(3) Tags shall contain legible information arranged in the 
specific order as follows: 

(A) The harvester's name, address and shellfish 
license or standard or retired standard 
commercial fishing hcense with shellfish 
endorsement number. 

(B) The date of harvest. 

(C) The most precise description of the harvest 
location as is practicable (e.g.. Long Bay, Rose 
Bay) that can be easily located by maps and 
charts. 

(D) Type and quantity of shellfish. 

(E) The following statement will appear in bold, 
capitalized type: "THIS TAG IS REQUIRED 
TO BE ATTACHED UNTIL CONTAINER IS 
EMPTY AND THEREAFTER KEPT ON 
FILE FOR 90 DAYS". 

Authority G.S. J 13-134; 113-168.5; 113-169.2; 113-182; 113- 
221; 143B-289.52; 
Amended Eff. August 1, 2000. 

.0105 HARVEST OF CRABS AND SHELLFISH 

(a) It is unlawful for individuals who harvest blue crabs for 
a recreational purpose to possess more than 50 blue crabs per 
person per day not to exceed 1 00 blue crabs per vessel per day. 

(b) It is unlawfiJ to exceed the daily vessel limits specified in 
G.S. 1 13-169.2 without each person having ready at hand a valid 
standard or retired standard commercial fishing license with 
shellfish endorsement or a shellfish license. 

(c) It is unlawful to take oysters or clams on Sundays and 
scallops on Saturdays and Simdays except: 

( 1 ) during open seasons, and 

(2) in accordance with limits outlined in G.S. 1 13-169.2. 

Authority G.S. 113-134; 113-169.2; 113-182; 143B-289.52; 
Amended Eff. August J, 2000. 

.0106 TAKING OR UNLOADING OYSTERS AND 
CLAMS ON SUNDAY OR AT NIGHT 

(a) It is unlawfial to take oysters or clams between the hours 
of sunset and sunrise on any day. 

(b) It is unlawful to unload oysters or clams Irom any vessel 
or remove any vessel containing oysters or clams fi^om the water 
on Sunday or between sunset and sunrise on any day except that 
in New Hanover, Pender and Brunswick Counties, oysters and 
clams may be unloaded until two hours after sunset. Oysters 
and clams taken on Sunday under the provisions of 15ANCAC 
3K .0105 are exempt fi-om the Sunday unloading prohibition. 

Authority G.S. 113-134; 113-182; 143B-289.52; 



Amended Eff. August 1, 2000. 

SECTION .0200 - OYSTERS 

.0202 SIZE LIMIT AND CULLING TOLERANCE 

(a) It is unlawfijl to possess oysters which have accumulated 
dead shell, accumulated oyster cultch material, a shell length 
less than that specified by proclamation, or any combinarion 
thereof that exceeds a 10 percent tolerance hmit by volume. In 
determining whether the tolerance limit is exceeded, the 
Fisheries Director and his agents may grade all, or any portion, 
or any combination of portions of the entire quantity being 
graded, and in cases of violations, may seize and return to pubhc 
bottom or otherwise dispose of the oysters as authorized by law. 

(b) All oysters shall be culled by the catcher where harvested 
and all oysters of less than legal size, accumulated dead shell 
and cultch material, shall be immediately returned to the bottom 
fi-om which taken. 

(c) This Rule shall not apply to oysters imported from 
out-of-state solely for shucking by shucking and packing plants 
currently permitted by the Shellfish Sanitation Section of the 
Division of Environmental Health. 

Authority G.S 113-134; 113-182; 1438-289.52; 
Amended Eff. August 1, 2000. 

SUBCHAPTER 3L - SHRIMP, CRABS, AND LOBSTER 

SECTION .0200 - CRABS 

.0201 SIZE LIMIT AND CULLING TOLERANCE 

(a) It is imlawful to possess blue crabs less than five inches 
from tip of spike to tip of spike except mature females, soft, 
peeler crabs and fi"om March 1 through October 3 1 , male crabs 
to be used as peeler bait. A tolerance of not more than 10 
percent by number in any container shall be allowed. 

(b) All crabs less than legal size, except mature female and 
soft crabs, shall be immediately returned to the waters fi-om 
which taken Peeler crabs shall be separated where taken and 
placed in a separate container. Those peeler crabs not separated 
shall be deemed hard crabs and are not exempt from the size 
restrictions specified in Paragraph (a) of this Rule. 

Authority G.S 113-134; 113-182; 113-221; 1438-289.52; 
Amended Eff. August 1. 2000. 

SUBCHAPTER 30 - LICENSES, LEASES, AND 
FRANCHISES 

SECTION .0100 - LICENSES 

.0103 AUXILIARY VESSELS 

(a) Buy boats, run boats, purse boats or any other vessels 
used in conjunction with commercial fishing operations, except 
vessels without motors used in coimection with other vessels 
with commercial fishing vessel registrations, shall have a 
commercial fishing vessel registration. 

(b) A person in command of a vessel that is auxiliary to a 



1553 



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APPROVED RULES 



vessel with a commercial fishing vessel registration with a 
person aboard who holds a Standard Commercial Fishing 
License or a Retired Standard Commercial Fishing License 
engaged in a commercial fishing operation using a pound net, 
long-haul, beach seine or purse seine is exempt from the 
provisions of G.S. 113-168.2 (al). 

Authority G.S. 113-134; 113-168.1; 113-168.2; 113-168.5; 113- 
168.6; 113-169; 1438-289.52; 
Amended Ejf. August 1. 2000. 

.0104 COMMERCIAL UNLOADING OF FISH 

It is unlawful to unload fish from a vessel in North Carolina 
which has been engaged in a commercial fishing operation 
outside state waters without possessing a vahd: 

(1) Standard or Retired Standard Commercial Fishing 
Licenses; or 

(2) a Menhaden License for Nonresidents Without a 
Standard Commercial Fishing License; or 

(3) a Shellfish License for North Carolina Residents 
without a Standard Commercial Fishing Licenses; or 

(4) a Land or Sell License. 

AuthontyG.S. 113-168.1; 113-168.2; 113-168.4; 113-169; 113- 
169.5; 143B-289.52; 
Amended Ejf . August 1, 2000. 

.0106 DISPLAY OF LICENSES AND 
REGISTRATIONS 

(a) It is unlawful: 

(1) For any person to use a vessel required to be 
registered under the provisions of G.S. 1 13-168.6 in 
a commercial fishing operation without a current 
commercial fishing vessel registration decal mounted 
on an exterior surface so as to be plainly visible when 
viewed from the port side; 

(2) To display any commercial fishing vessel registration 
decal not issued for the vessel displaying it. 

(b) It is unlawful to fail to display any fish dealer's licenses 
required by OS. 113-169.3 or ocean fishing pier license 
required by G.S. 1 13-169.4 in prominent pubhc view in each 
location subject to licensing. 

AuthontyG.S. 113-168.6; 113-169.3; 113-169.4; 143B-289.52; 
Amended Eff. August 1, 2000. 

.0108 LICENSE TRANSFERS 

(a) Licenses to Land Flounder from the Atlantic Ocean may 
only be transferred: 

(1) with the transfer of the ownership of a vessel that the 
hcensee owns that individually met the eligibility 
requirements of 15A NCAC 30 .0101 (b) (1) (A) and 
(b) (1) (B) to the new owner of that vessel Transfer 
of the License to Land Flounder from the Atlantic 
Ocean transfers all flounder landings from the 
Atlantic Ocean associated with that vessel; or 

(2) by the owner of a vessel to another vessel under the 
same ownership. 



Any transfer of license under this Paragraph may only be 
processed through the Division of Marine Fisheries 
Morehead City Office and no transfer is effecrive until 
approved and processed by the Division. 

(b) Commercial Fishing Vessel Registration Transfer. When 
transferring ownership of a vessel bearing a cunent commercial 
fishing vessel registration, the new owner shall follow the 
requirements in 15ANCAC30 .0101 and pay a replacement fee 
often dollars ($10.00) for a replacement commercial fishing 
vessel regisfration. The new owner must submit a form provided 
by the Division with the signatures of the former hcensee and 
the signature of the new licensee notarized. 

(c) Standard or Retired Standard Commercial Fishing License 
transfers. 

( 1 ) A Standard or Retired Standard Commercial Fishing 
License may only be transferred if both the transferor 
and the transferee have no current suspensions or 
revocations of any Marine Fisheries hcense 
privileges. 

(2) At the time of the transfer of a Standard or Retired 
Standard Commercial Fishing License, the transferor 
must indicate the retainment or transfer of the 
landings history associated with that Standard or 
Retired Standard Commercial Fishing License. The 
transferor may retain a landings history only if the 
tranferor holds an additional Standard or Retired 
Standard Commercial Fishing License. Transfer of a 
landings history is all or none. 

(3) To transfer a Standard or Retired Standard 
Commercial Fishing License, the following 
information is required: 

(A) information on the transferee as set out in 15A 
NCAC 30 .0101; 

(B) notarization of the current hcense holder's and 
the transferee's signatures on a transfer form 
provided by the Division; 

(C) when the transferee is a non-resident, a written 
certified statement from the applicant hsring 
any violations involving manne and estuarine 
resources during the previous three years; 

(D) when the transferor is retiring from 
commercial fishing, the transferor must submit 
evidence showing that such retirement has in 
fact occurred, for example, evidence of the 
transfer of all licensee's Standard Commercial 
Fishing Licenses, sale of all the licensee's 
registered vessels, or discontinuation of any 
active involvement in commercial fishing. 

Properly completed transfer forms must be returned 
to Division Offices by mail or in person. 

(4) The Standard or Retired Standard Commercial 
Fishing License which is being transferred must be 
surrendered to the Division at the time of the transfer 
application. 

(5) Fees: 

(A) Transferee must pay a replacement fee often 
dollars ($10 00). 

(B) Transferee must pay the differences in fees as 



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APPROVED RULES 



specified in G.S. 113-168.2 (e) or G.S. 113- 
168.3 (b) when the transferee who is a non- 
resident is being transferred a resident 
Standard or Retired Standard Commercial 
Fishing License. 

(C) Transferee must pay the differences in fees as 
specified in G.S. 113-168.2 (e) when the 
license to be transferred is a Retired Standard 
Commercial Fishing License and the transferee 
is less than 65 years old. 
(6) Transfer of Standard or Retired Standard Commercial 

Fishing License for Deceased Licensees: 

(A) When the deceased licensee's immediate 
surviving family member(s) is eligible to hold 
the deceased's Standard Commercial Fishing 
Licenses or Retired Standard Commercial 
Fishing License, the Administrator/Executor 
must give written notification within six 
months after the Administrator/Executor 
qualifies under G. S. 28A to the Morehead City 
Office of the Division of Marine Fisheries of 
the request to transfer the deceased's hcense to 
the estate Administrator/Executor. 

(B) A transfer to the Administrator/Executor shall 
be made according to the provisions of 
Subparagraphs (c (2) - (c) (4) of this Rule. The 
Administrator/Executor must provide a copy of 
the deceased licensee's death certificate, a copy 
of the certificate of administration and a list of 
eligible immediate family members to the 
Morehead City Office of the Division of 
Marine Fisheries. 

(C ) The Administrator/Executor may only transfer 
a license in the Administrator/Executor name 
on behalf of the estate to a eligible surviving 
family member. The surviving family member 
transferee may only transfer the hcense to a 
third party purchaser of the deceased licensee's 
fishing vessel. Transfers shall be made 
according to the provisions of Subparagraphs 
(c)2- (c)(4) of this Rule. 

(d) Transfer forms submitted without complete and required 
information shall be deemed incomplete and will not be 
considered further until resubmitted with all required 
information. 

(e) It is unlawful for a person to accept transfer of a Standard 
or Retired Standard Commercial Fishing License for which they 
are ineligible. 

Authority G.S. 113-134: 113-168.1; 113-168.2; 113-168.3; 113- 
168.6; 1438-289.52; 
Amended Ejf. August 1. 2000. 

.0109 ASSIGNMENT OF SCFL 

(a) The Division of Marine Fisheries shall provide 
assignment forms upon issuance of the Standard Commercial 
Fishing License. Assignment must be made on the Division 
assignment forms. On the assignment form, the Standard 



Commercial Fishing License holder must designate what, if any, 
endorsements are included in the assignment Endorsements 
may not be assigned independent of the Standard Commercial 
Fishing License. It is unlawful for the Standard Commercial 
Fishing License holder to fail to submit within five days the 
completed assigrmient form to any office of the Division in 
person or by mail to the Morehead City Division OfBce. An 
assignment is in effect fi"om the date specified on the assignment 
form and when: 

( 1 ) assignment form is properly completed; 

(2) signatures of the current license holder and the 
assignee are notarized; and 

(3) assignee has in their possession the original actual 
Standard Commercial Fishing License with 
endorsements of the current license holder. 

(b) Assignments terminate when: 

(1) date specified on the assignment form is reached; or 

(2) licensee or assignee are determined ineligible for a 
hcense or assignment; or 

(3) Division receives a notarized statement from the 
current license holder stating a revised date for an 
earlier assignment termination; or 

(4) upon the licensee or assignee's death; or 

(5) the Standard Commercial Fishing License expires. 
If the properly completely assignment form is not received by 
the Division within five days from the date it was signed, the 
assigrmient is null and void. For an extension of time for 
assignments, a new assignment form must be completed in 
accordance with Subparagraphs (a)(1) - (3) of this Rule. 

(c) It is unlawful for an individual assigned a Standard 
Commercial Fishing License to fail to have available ready at 
hand for inspection all required documents as stated under G.S. 
113-168.1. The assignee when involved in a commercial fishing 
operation must have the original actual Standard Commercial 
Fishing License and any assigned endorsements and a copy of 
the assignment form in their possession ready for inspection. 

(d) All landings occurring during the time of the assignment 
shall be credited to the Standard Commercial Fishing License 
holder, not the assignee. 

(e) It is unlawful to be assigned more than a single Standard 
Commercial Fishing License at any one time. It is unlawfiil to 
assign a Standard Commercial Fishing License to more than one 
individual at any one time. Assigmnents may only be made by 
tlie person issued the Standard Commercial Fishing License and 
may not be further assigned by assignees. Masters identified on 
the Standard Commercial Fishing Licenses of corporations 
consisting of an individual fishing vessel may not assign such 
licenses. 

(f) It is unlawful for a person to accept assignment of a 
Standard Commercial Fishing License for which they are 
ineligible. 

(g) Assigimients submitted without complete and required 
information shall be deemed not in effect and shall not be 
considered further until resubmitted with all required 
information. 

(h) It is unlawful for any assignee of a Standard Commercial 
Fishing License not to return the assignment and the Standard 
Commercial Fishing License with any assigned endorsements to 



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APPROVED RULES 



the assignor of that license within five days of notice that the 
assignment has been terminated or a demand by the assignor to 
return the hcense. 

Authority G.S. 113-134; 113-168.1; 113-168.2; 113-168.5; 

143B-289.52; 

Amended Eff. August 1, 2000. 

.0111 SURRENDER OF LICENSES 

(a) It is unlawfiil for any hcensee to refiise to surrender to an 
agent of the Secretary ail licenses, license receipts, 
endorsements, commercial fishing vessel registration decals, and 
other forms and records relating to the license following 
personal service of notice of suspension or revocation of 
hcenses in accordance with G.S. 113-171. 

(b) It is unlawfiil for any person in custody or possession of 
any Hcenses, hcense receipt, endorsements, commercial fishing 
vessel registration or decals, and other forms and records 
required to be surrendered to refiase to surrender same to an 
agent of the Secretary making such demand. 

Authority G.S. 113-134; 113-171; 143B-289.52; 
Amended Eff. August 1, 2000. 

SECTION .0200 - LEASES AND FRANCHISES 

.0201 STANDARDS FOR SHELLFISH BOTTOM AND 
WATER COLUMN LEASES 

(a) All areas of the pubhc bottoms underlying coastal fishing 
waters shall: 

(1) Meet the foUowing standards in addition to the 
standards in G S. 113-202 in order to be deemed 
suitable for leasmg for shellfish purposes: 

(A) The lease area must not contain a natural 
shellfish bed which is defined as 10 bushels or 
more of shellfish per acre. 

(B) The lease area must not be closer than 1 00 feet 
to a developed shoreline. In an area bordered 
by undeveloped shoreline, no minimum 
setback is required. When the area to be 
leased borders the applicant's property or 
borders the property of riparian owners who 
have consented in a notarized statement, the 
Secretary may reduce the distance irom shore 
required by this Rule. 

(C) Unless the apphcant can affirmatively establish 
a necessity for greater acreage through the 
management plan that is attached to the 
apphcation and other evidence submitted to the 
Secretary, the lease area shall not be less than 
one-half acre and shall not exceed: 

(i) 10 acres for oyster culture; 
(ii) 5 acres for clam culture; or 
(iii) 5 acres for any other species. 
This Subparagraph shall not be applied to reduce any 
holdings as of July 1, 1983. 

(2) Produce and market 25 bushels of shellfish per acre 
per year to meet the minimum commercial production 



requirement or plant 25 bushels of cultch or seed 
shellfish per acre per year to meet commercial 
production by planting effort. 

(A) Only shellfish planted, produced or marketed 
according to the definitions in 15A NCAC 31 
.0101 (26), (27) and (28) shall be submitted on 
production/utilization forms for shellfish leases 
and franchises. 

(B) If more than one shellfish lease or franchise is 
used in the production of shellfish, one of the 
leases or franchises used in the production of 
the shellfish must be designated as the 
producing lease or franchise forthose shellfish. 
Each bushel of shellfish may be produced by 
only one shellfish lease or franchise. Shellfish 
transplanted between leases or franchises may 
be credited as planting effort on only one lease 
or franchise. 

(C) Production and marketing information and 
planting effort information are compiled and 
averaged separately to assess compliance with 
the standards. The lease or franchise must 
meet either the production requirement or the 
planting effort requirement within the dates set 
forth to be judged in compliance with these 
standards. 

(D) In determining production and marketing 
averages and planting effort averages for 
information not reported in bushel 
measurements, the following conversion 
factors shall be used: 

(i) 300 oysters, 400 clams, or 400 scallops 

equal one bushel; 
(ii) 40 pounds of scallop shell, 60 pounds of 
oyster shell, 75 pounds of clam shell 
and 90 pounds of fossil stone equal one 
bushel. 

(E) In the event that a portion of an existing lease 
or franchise is obtained by a new owner, the 
production history for the portion obtained 
shall be a percentage of the originating lease or 
fi-anchise production equal to the percentage of 
the area of lease or franchise site obtained to 
the area of the originating lease or franchise. 

(F) All bushel measurements shall be in U.S. 
Standard Bushels. 

(b) Water columns superjacent to leased bottoms shall meet 
the standards in G.S. 1 13-202.1 in order to be deemed suitable 
for leasing for aquaculture purposes 

(c) Water columns superjacent to duly recognized perpetual 
franchises shall meet the standards inG S. 1 13-202.2 in order to 
be deemed suitable for leasing for aquaculture purposes. 

(d) Water column leases must produce and market 100 
bushels of shellfish per acre per year to meet the minimum 
commercial production requirement or plant 100 bushels of 
cuhch or seed shellfish per acre per year as determined by 
Division biologists to meet commercial production by planting 
effort. The rules for deteraumng production and marketing 



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1556 



APPROVED RULES 



averages and planting effort averages shall be the same for water provisions of other applicable rules of the Marine Fisheries 
column leases as for bottom leases and franchises set forth in Commission or provisions of proclamations issued by the 
Paragraph (a) of this Rule. 

Authority G.S. 113-134; 113-201; 113-202; 113-202.1; 
113-202.2; 143B-289.52; 
Amended Eff. August 1, 2000. 



SECTION .0300 - LICENSE APPEAL PROCEDURES 

.0302 AUTHORIZED GEAR 

(a) The following are the only commercial fishing gear 
authorized (including restrictions) for use under a vahd 
Recreational Commercial Gear License: 

(1) One seine 30 feet or over in length but not greater 
than 100 feet with a mesh length less than 22 inches 
when deployed or retrieved without the use of a 
vessel or any other mechanical methods. A vessel 
may only be used to transport the seine; 

(2) One shrimp trawl with a headrope not exceeding 26 
feet in length per vessel. Mechanical methods for 
retrieving the trawl are not authorized for recreational 
purposes, including but not limited to hand winches 
and block and tackle; 

(3) With or without a vessel, five eel, fish, shrimp, or 
crab pots in any combination, except only two pots of 
the five may be eel pots. Peeler pots are not 
authorized for recreational purposes; 

(4) One multiple hook or multiple bait trothne up to 100 
feet in length; 

(5) Gill Nets: 

(A) Not more than 100 yards of gill nets with a 
mesh length equal to or greater than 22 inches. 
Attendance is required at all times; 

(B) Not more than 100 yards of gill nets with a 
mesh length equal to or greater than 52 inches. 
Attendance is required when used from one 
hour after sunrise through one hour before 
sunset; 

(C) Not more than 100 yards of gill net may be 
used at any one time; and 

(D) It is unlawful to possess aboard a vessel more 
than 100 yards of gill nets with a mesh length 
less than 52 inches and more than 100 yards of 
gill nets with a mesh length equal to or greater 
than 52 inches identified as recreational 
commercial fishing equipment; and 

(6) A hand-operated device generating pulsating 
electrical current for the taking of catfish in the area 
described m 15A NCAC 3J .0304. 

(b) It is unlawful to use more than the quanfity of authorized 
gear specified in Subpargraphs (a)(1) - (a)(6) of this Rule, 
regardless of the number of individuals aboard a vessel 
possessing a valid Recreational Commercial Gear License. 

(c) It is unlawful for a person to violate the restrictions of or 
use gear other than that authorized by Paragraph (a) of this Rule. 

(d) Unless otherwise provided, this Rule does not exempt 
Recreational Commercial Gear License holders from the 



Fisheries Director as authorized by the Marine Fisheries 
Commission. 

Authority G.S. 113-134; 113-173; 
Amended Ejf. August 1, 2000. 

.0303 RECREATIONAL COMMERCIAL GEAR 
LICENSE POSSESSION LIMITS 

(a) It is unlawful to possess more than a single recreational 
possession limit when only one person aboard a vesselpossesses 
a vahd Recreational Commercial Gear License and recreational 
commercial fishing equipment as defined in 15A NCAC 30 
.0302(a) is used, regardless of the number of persons on board. 

(b) It is unlawful to possess individual recreational 
possession limits in excess of the number of individuals aboard 
a vessel holding valid Recreational Commercial Gear Licenses. 

(c) It is imlawfiil for any person who holds both a 
Recreational Commercial Gear License and a Standard or 
Retired Commercial Fishing License and who is in possession of 
identified recreational commercial fishing equipment as defined 
in 15A NCAC 30 .0302(a), to exceed the single recreational 
possession limit. 

(d) It is unlawful for persons aboard a vessel collectively 
holding only one Recreational Commercial Gear License and 
any Standard Commercial Fishing License or Retired Standard 
Commercial Fishing License and who are in possession of any 
identified recreational commercial fishing equipment as defined 
in 15A NCAC 30 .0302(a), to exceed one recreational 
possession limit. 

Authority G.S. 113-134; 113-170.4; 113-173; 143B-289.52; 
Amended Eff. August 1, 2000. 

SECTION .0400 - STANDARD COMMERCIAL 
LICENSE ELIGIBILITY 

.0401 ELIGIBILITY BOARD 

(a) The Chairman of the Marine Fisheries Commission, the 
Secretary of the Department of Environment and Natural 
Resources, and the Director of the Division of Marine Fisheries 
may each name a designee and an alternate designee to serve on 
the Eligibility Board as their representative in their absence. 

(b) The Eligibility Board shall not review an application for 
eligibihty without a quorum of the Eligibility Board members or 
designees being present. Two or more members of the 
Ehgibility Board or their designees constitute a quorum. 

Authority G.S 113-134; 143B-289.52; S.L. 1998-225, s. 4; 24; 
Eff. August 1,2000. 

.0402 APPLICATION PROCESS 

(a) Application forms for determination of eligibility for the 
Standard Commercial Fishing Licenses Eligibility Pool shall be 
available at all offices of the Division of Marine Fisheries and 
must be submitted to the Morehead City Office of the Division 
of Marine Fisheries for processing. 



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(b) Applications for determination of eligibility for the 
Standard Commercial Fishing License Eligibility Pool for the 
1999-2000 license year shall be accepted beginning April 1, 
1999. All applications received from April 1, 1999 through June 
30, 1999, shall be reviewed for eligibihty for the 1999-2000 
hcense year. 

(c) OnJy one apphcation per individual for determination of 
eligibihty for the Standard Commercial Fishing Licenses 
Eligibility Pool shall be accepted or may be pending at any one 
time. An applicant may only have one entry in the eligibility 
pool at any one time. 

(d) Individuals who currently hold or are eligible to purchase 
a Standard or Retired Standard Commercial Fishing License 
shall not be eligible to apply for additional Standard Commercial 
Fishing Licenses through the Standard Commercial Fishing 
Licenses Ehgibility Pool. 

(e) If an apphcant has died or becomes inehgible and is 
subsequently selected from the eligibility pool, that license 
eligibility shall automatically revert to the eligibility pool. 

(0 Persons claiming retirement from commercial fishing or 
transferring their Standard Commercial Fishing License may not 
apply for pool eligibility for two years from the date of the last 
transfer. 

(g) Apphcants shall notify the Division of Marine Fisheries 
within 30 days of a change of address. 

Authority G.S. 113-134; 143B-289.52; S.L 1998-225, s. 4:24; 
Eff. August 1, 2000. 

.0403 ELIGIBILITY BOARD REVIEW 

(a) The Ehgibility Board will meet on the first Wednesday of 
May, 1999, and shall review all applications to determine 
eligibility under criteria set out in 15A NCAC 30 .0404. This 
Board will continue to meet as needed until all applications 
received by the Division of Marine Fisheries by June 30, 1999, 
have been reviewed. 

(b) After determination by the Eligibility Board, applicants 
will be notified in writing as to the applicant's meeting or not 
meeting required ehgibility cnteria for the Standard Commercial 
Fishing License Eligibihty Pool. 

(c) Within 30 days of completion of the review by the 
Ehgibility Board of the applications for eligibility, the Marine 
Fisheries Commission shall conduct a Business Meeting to draw 
the 500 apphcations from the Standard Commercial Fishing 
License Eligibihty Pool for issuance of hcenses. This selection 
shall be done by a random selection process. 

(d) If less than 500 applications are determined to be eligible 
in the applications submitted from April 1 , 1 999 through June 
30, 1999, the Ehgibihty Board will meet the first Wednesday of 
each month until the 500 licenses in the Standard Commercial 
Fishing License Ehgibility Pool have been issued or until June 
30, 2000. The Marine Fisheries Commission will draw 
applications from the Standard Commercial Fishing License 
Ehgibility Pool for issuance of licenses by a random selection 
process at their next regularly scheduled meeting. 

(e) The Eligibility Board shall meet at least quarterly after the 
initial review, unless the 500 openings on the Standard 
Commercial Fishing License Eligibility Pool are not filled in the 



initial review and drawing. Other meetings may be held as 
determined necessary by the Chairman of the Eligibility Board 
based on the number of apphcations received after June 30, 
1999, to determine eligibility for future years' licenses. 

(f) In subsequent years followmg the 1999-2000 license year, 
the Marine Fisheries Commission will detemune the number for 
selection from the Standard Commercial Fishing License 
Eligibility Pool and draw the applications from the Standard 
Commercial Fishing License Ehgibility Pool for issuance of 
licenses by a random selection process at their first scheduled 
meeting following July 1 of each year and as necessary 
throughout the year. 

(g) In subsequent years following the 1999-2000 license year, 
the Eligibility Board shall meet at least quarterly to review 
applications. 

Authority G.S. 113-134; 143B-289.52; S.L. 1998-225. s. 4:24; 
Eff. August 1, 2000. 

.0405 APPLICATION DOCUMENTATION 

Documentation for applications: 

( 1 ) Statements from individuals verifying the applicant's 
involvement must contain the individual's name, 
address and telephone number and must be notarized. 

(2) Proof of income derived from commercial fishing or 
the commercial fishing industry. Proof of this income 
shall be tax records. 

(3) The extent to which the apphcant has complied with 
federal and state laws, regulations, and rules relating 
to coastal fishing and protection of the environment. 
Federal compliance will be verified by a notarized 
statement from the applicant that he has complied 
with federal laws. 

(4) All documents required by this Rule must be 
notarized. 

(5) Applications shall be legible and complete or they will 
be returned. 

(6) It is unlawful to submit false statements on 
applications or supporting documents. If ehgibihty is 
based on false information provided by the applicant, 
this eligibility is automatically revoked. 

Authority G.S 113-134; 143B-289.52; S.L. 1998-225. s. 4:24; 
Eff. August I 2000. 

.0406 STANDARD COMMERCIAL FISHING 
LICENSE ELIGIBILITY POOL 
CERTIFICATION 

Annual certification to maintain an eligible apphcation in the 
Standard Commercial Fishing License Eligibility Pool shall be 
as follows; 

( 1 ) The applicant shall certify that the uiformafion on his 
original application is correct and that he desires to 
remain in the Standard Commercial Fishing License 
Ehgibility Pool. 

(2) A certification form shall be provided and mailed to 
the applicant at the last known address by the 
Division. 



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(3) This certification, with any changes such as address, 
phone number, or updated fisheries involvement 
information since the last application or certification 
must be notarized and submitted to the Division 
within 12 months of the initial application and 
annually thereafter. 

(4) Failure to return certification that application is 
correct or with changes within 30 days will result in 
the application being deleted fi'om the Standard 
Commercial Fishing License Eligibility Pool. 

(5) An applicant that has been deleted fi^om the Standard 
Commercial Fishing License Eligibility Pool shall 
receive a notice fi"om the Division. 

Authority G.S. 113-13-4; 143B-289.52; S.L. 1998-225, s. 4:24; 
Eff August 1, 2000. 

CHAPTER 7 - COASTAL MANAGEMENT 

SUBCHAPTER 7H - STATE GUIDELINES FOR AREAS 
OF ENVIRONMENTAL CONCERN 



SECTION .0200 



THE ESTUARINE AND OCEAN 
SYSTEM 



.0201 



ESTUARINE AND OCEAN SYSTEM 
CATEGORIES 

Included within the estuarine and ocean system are the 
following AEC categories: estuarine waters, coastal wetlands, 
public trust areas, and estuarine and public trust shorelines. 
Each of the AECs is either geographically within the estuary or, 
because of its location and nature, may significantly affect the 
estuarine and ocean system. 

Authority G.S. 1 13A-1 J 3(b)(J): 1 1 3 A-ll 3(b)(2): 
113A-1 13(b)(5): 113A-113(b)(6)b: 113A-124; 
Amended Eff. August 1, 2000. 

SECTION .1300 - GENERAL PERMIT TO MAINTAIN: 
REPAIR AND CONSTRUCT BOAT RAMPS 
ALONG ESTUARINE AND PUBLIC TRUST 

SHORELINES AND INTO ESTUARINE AND PUBLIC 
TRUST WATERS 

.1301 PURPOSE 

This permit will allow the construction of boat ramps of 
suitable materials along estuarine and public trust shorelines and 
into estuarine and public trust waters AECs according to the 
authority provided in Subchapter 7J . 1 100 and according to the 
following guidelines. This permit will not apply to the Ocean 
Hazard AEC. 



Authority G.S. 113A-107(a): 
113A-118.1: 113A-124. 



113A-I07(b): 113A-I13(bJ; 



SECTION .1600 - GENERAL PERMIT FOR THE 

INSTALLATION OF AERIAL AND SUBAQUEOUS 

UTILITY LINES WITH ATTENDANT STRUCTURES 



IN COASTAL WETLANDS: ESTUARINE WATERS: 

PUBLIC TRUST WATERS AND ESTUARINE 

SHORELINES 

.1601 PURPOSE 

A permit under this Section shall allow for the installation of 
utihty lines both aerially and subaqueously in the coastal 
wetland, estuarine water, public trust areas and estuarine and 
public trust shoreHne AECs according to the authority provided 
in Subchapter 7 J . 1 1 00 and according to the rules in this Section. 
This general permit shall not apply to the ocean hazard AECs. 

Authority G.S 113-229(cl): 113A-I07(a)(b): 113A-113(b); 

lUA-lis.l: 

Amended Eff. August 1, 2000. 

SECTION .1900 - GENERAL PERMIT TO ALLOW 

FOR TEMPORARY STRUCTURES WITHIN 

COASTAL SHORELINES AND OCEAN HAZARD 

AECS 

.1901 PURPOSE 

A permit under this Section shall allow for the placement of 
temporary structures within estuarine and pubhc trust shorelines, 
and ocean hazard AECs according to the provisions provided in 
Subchapter 7J . 1 100 and according to the rules in this Section. 

Authority G.S 113-229(cl): 1 1 3A-1 07(a) (b): 113A-113(b): 

113A-118.1: 

Amended Eff. August 1, 2000. 

SUBCHAPTER 7K - ACTIVITIES IN AREAS OF 

ENVIRONMENTAL CONCERN WHICH DO NOT 

REQUIRE A COASTAL AREA MANAGEMENT ACT 

PERMIT 

SECTION .0200 - CLASSES OF MINOR 

MAINTENANCE AND IMPROVEMENTS WHICH 

SHALL BE EXEMPTED FROM THE CAMA MAJOR 

DEVELOPMENT PERMIT REQUIREMENT 

.0203 PRIVATE BULKHEADS: RIPRAP: AND 
PIERS EXEMPTED 

(a) The NC Coastal Resources Commission hereby exempts 

from the Coastal Area Management Act permit requirement 

work in the estuarine shoreline, public trust shoreline, and public 

trust waters areas of environmental concern necessary' to 

maintain, repair, and construct private bulkheads with backfill, 

and to place riprap material along shorelines, and construct piers 

or mooring facihties in waters of North Carolina. This 

exemption is subject to the following conditions and limitations: 

( 1 ) The activities exempted by this Rule shall be private, 

non-commercial activities conforming to the 

standards and conditions contained in this Rule. This 

exemption does not apply to development associated 

with multi-unit residential developments larger than 

duplexes or to marinas, commercial harbors, 

community or neighborhood boat access, fish houses 



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APPROVED RULES 



or similar commercial activities. 

(2) This exemption is applicable only along estuarine and 
public trust shorelines void of wetland vegetation 
types described in G.S. 113-229, or where all 
construction is to be accomplished landward of such 
vegetation, or where the pier is elevated above said 
wetlands. 

(3) This exemption only applies to bulkheads, riprap, and 
piers in non-oceanfront areas. 

(4) This exemption does not eliminate the need to obtain 
any other required federal, state, or local 
authorization. 

(5) Before beginning any work imder this exemption the 
Department of Environment and Natural Resources 
representative must be notified of the proposed 
activity to allow on-site review of the bulkhead, riprap 
material, or pier alignment. Notification may be by 
telephone, in person, or in writing. Notification must 
include: 

(A) the name, address, and telephone number of 
landowner and location of work including 
county, nearest community, and water body; 

(B) the dimensions of the proposed pier, bulkhead 
with backfill, or the area dimensions to be 
covered by placement of riprap material; 

(C) confirmation that a written statement has been 
obtained, signed by the adjacent riparian 
property owners, indicating that they have no 
objections to the proposed work. (These 
statements do not have to be presented at the 
time of notification of intent to perform work, 
but the permittee must make it available to 
CRC agents at their request. ) 

(6) The landowner must agree to perform the work 
authorized in this Rule in a manner so as to conform 
with standards for development in the estuarine or 
public trust shorehne area of environmental concern. 

(b) Bulkheads and Riprap: Conditions 

(1) The permittee shall maintain structure of areas of 
riprap material authorized in this Rule in good 
condition. 

(2) Bulkhead with backfill, and placement of riprap 
material exempted by this Rule shall be limited to a 
maximum shorehne length of 200 feet. 

(3) The bulkhead backfill and riprap materials must be 
obtained from an upland source. 

(4) No excavation is exempted under this Rule except 
that which may be required for installation of the 
riprap, bulkhead wall, deadmen, cables, or pilings. 

(5) The proposed bulkhead alignment or area for 
placement of riprap m^aterial must be staked or 
flagged by the landovmer in consultation with, or 
approved by, a state or federal permit officer prior to 
any construction activity. The bulkhead must be 
positioned so as not to extend more than an average 
distance of two feet waterward of the normal high 
water line or normal water line., in no place shall the 
bulkhead be more than five feet waterward of the 



normal high water line or normal water line. 
Construction activities must begin 90 days after 
approval of the alignment or area. 

(6) The bulkhead must be sotid structure constructed of 
treated wood, concrete slabs, metal sheet piles, 
corrugated asbestos sheeting, or sunilar materials. A 
structure made of organic material, tires, car bodies, 
or similar materials is not considered a bulkhead. 

(7) The bulkhead must be structurally tight so as to 
prevent seepage of backfill materials through the 
bulkhead. The bulkhead must be constructed prior to 
any backfilling activities. 

(8) Riprap material must consist of clean rock or masonry 
materials such as marl, brick, or broken concrete. 
Materials such as tires, car bodies, scrap metal, paper 
products, tree limbs, wood debris, organic material or 
similar material are not considered riprap. 

(c) Piers: Conditions 

(1) Exemptions for pier construction along natural 
shorelines are available only for lots with shoreline 
lengths 75 feet or greater. Exemptions may be used 
on shorelines in human-made canals and basins 
regardless of shoreline length. 

(2) Piers and mooring facihties must not exceed 100 feet 
in total length off-shore; must not be within 150 feet 
of the edge of a federally maintained channel; must 
not extend past the four foot normal low water 
contour line (four foot depth at normal low water) of 
the water body; must not exceed six feet in width; 
must not include an enclosed structure; and must not 
interfere with established navigation rights of other 
users of the water body and must have a minimum 
setback of 1 5 feet between any part of the pier and the 
adjacent property owners' areas of riparian access. 
The line of division of areas of riparian access shall 
be estabhshed by drawing a line along the channel or 
deep water in front of the properties, then drawing a 
line perpendicular to the line of the channel so that it 
intersects with the shore at the point the upland 
property line meets the water's edge. The four foot 
normal low water restriction shall not apply to piers 
constructed in canals and basins dredged from areas 
above normal high water (NHW) or normal water 
level (NWL). 

(3) This exemption shall not apply to docks and piers 
being built within shellfish franchises or leases unless 
the applicant for authorization to construct can 
provide written confirmation of no objections to the 
proposal from the lessee. 

(4) Piers authorized by this exemption shall be for the 
exclusive use of the land owner, and shall not provide 
either leased or rented docking space or any other 
commercial services. Piers and mooring facihties 
designed to provide dockmg space for more than two 
boats shall, because of their greater potential for 
adverse impacts, be reviewed through the permitting 
process, and, therefore, are not authorized by this 
exemption. 



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APPROVED RULES 



(5) Piers and docks shall in no case extend more than 1/4 
the width of a natural water body, canal or basin. 
Measurements to determine widths of the water body, 
canals or basins shall be made from the waterward 
edge of any coastal wetland vegetation which borders 
the water body. The 1/4 length limitation shall not 
apply when the proposed pier is located between 
longer piers within 200 feet of the applicant's 
property. However, the proposed pier shall not be 
longer than the pier head line established by the 
adjacent piers, nor longer than 1/3 the width of the 
water body. 

(6) Any portion of a pier (either fixed or floating) 
extending from the main structure and six feet or less 
in width shall be considered either a "T" or a finger 
pier. 

(7) Any portion of a pier (either fixed or floating) greater 
than six feet wide shall be considered a platform or 
deck. 

(8) "T"s, finger piers, platforms, and decks of piers must 
not exceed a combined total area of 200 square feet. 

(9) Platforms and decks shall have no more than six feet 
of any dimension extending over coastal wetlands and 
shall be elevated at least three feet above any coastal 
wetland substrate as measured from the bottom of the 
decking. 

Authority G.S. J J3A-]03(5)c: 112A-1 18(a): 
Amended Eff. August 1. 2000. 

.0209 EXEMPTION/ACCESSORY 

USES/MAINTENANCE 
REPAIR/REPLACEMENT 

(a) Accessory uses that are directly related to the existing 
dominant use, but not within the exclusion set out in G.S. 
113A-103(5)(b)(6) and that require no plumbing, electrical or 
other service connections and do not exceed 200 square feet 
shall be exempt from the CAMA minor development permit 
requirement if they also meet the criteria set out in Paragraph (c) 
of this Rule. 

(b) Any structure or part thereof may be maintained, repaired 
or replaced in a similar manner, size and location as the existing 
structure without requiring a permit, unless such repair or 
replacement would be in violation of the criteria set out in 
Paragraph (c) of this Rule. TTiis exemption applies to those 
projects that are not within the exclusion for maintenance and 
repairs as set out m G.S. 1 13A-103(5)(b)(5) and Rule .0103 of 
this Subchapter. 

(c) In order to be eligible for the exemptions described in 
Paragraphs (a) and (b) of this Rule, the proposed development 
activity must meet the following criteria: 

(1) the development must not disturb a land area of 
greater than 200 square feet on a slope of greater than 
10 percent; 

(2) the development must not involve removal, damage, 
or destruction of threatened or endangered animal or 
plant species; 

(3 ) the development must not alter naturally or artificially 



created surface drainage charmels; 

(4) the development must not alter the land form or 
vegetation of a frontal dune; 

(5 ) the development must not be within 30 feet of normal 
water level; and 

(6) the development must be consistent with all 
apphcable use standards and local land use plans in 
effect at the time the exemption is granted. 

Authority G.S. 1 13A- 103(5) (b); 1 13A- 103(5) (c); U3A-IU; 
113A-H8(a): 113A-120(8); 
Amended Eff August 1, 2000. 

CHAPTER 18 - ENVIRONMENTAL HEALTH 

SUBCHAPTER 18C - WATER SUPPLIES 

SECTION .0300 - SUBMISSION OF PLANS: 
SPECIFICATIONS: AND REPORTS 

.0302 SUBMITTALS 

(a) All plans, specifications, reports or other data shall be 
submitted in triplicate for review by the Public Water Supply 
Section, Division of Environmental Health, P.O. Box 29536, 
Raleigh, North Carolina 27626-0536. 

(b) Engineering plans shall consist of legible prints having 
black, blue, or brown lines on a white background suitable for 
microfilming. The engineering plans shall not be more than 36 
inches wide and 48 inches long and not be less than 1 1 inches 
wide and 17 inches long. 

(c) An applicant subject to G.S. 143-355(1) shall submit three 
copies of the adopted Local Water Supply Plan. If information 
required in the Engineer's Report or the Water System 
Management Plan is included in an adopted Local Water Supply 
Plan, a submittal to the Department may incorporate this 
information by referencing the location in the adopted Local 
Water Supply Plan. 

(d) Existing systems that have previously submitted an 
Engineer's Report and a Water System Management Plan in 
accordance with Rule .0307 of this Section shall document any 
changes either as revised reports and plans or addendums. 

Authority G.S. 130A-315; 130A-317: P.L 93-523; 
Amended Eff. August 1, 2000. 

.0303 SUBMISSIONS REQUIRED BY ENGINEER 
AND APPLICANT 

(a) Detailed Engineer's Reports and engineering plans and 
specifications shall be prepared by a professional engineer 
licensed to practice in the State of North Carohna. These 
documents shall bear an imprint of the registration seal of the 
engineer. Upon completion of the construction or modification, 
the applicant shall submit a certification statement signed and 
sealed by a registered professional engineer stating that 
construction was completed in accordance with approved 
engineering plans and specifications, including any provisions 
stipulated in the Department's plan approval letter or 
authorization to construct letter, and revised only in accordance 



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with the provisions of Rule .0306 of this Section. The statement 
shall be based upon observations during and upon completion of 
construction by the engineer or a representative of the engineer's 
office who is under the engineer's supervision. 

(b) A Water System Management Plan as required in 
Paragraph (c) of Rule .0307 of this Section shall include a 
signed certification stating that the information submitted is 
true, accurate, and complete. This certification shall be in 
accordance with Paragraph (d) of this Rule. 

(c) The apphcant shall submit a signed certification, prior to 
Final Approval, stating that the requirements in Paragraph (d) 
(Operation and Maintenance Plan) and Paragraph (e) 
(Emergency Management Plan) of Rule .0307 of this Section 
have been satisfied, and that the system will have a certified 
operator as required by Section . 1 300 of this Subchapter prior to 
operation. This certification shaU be in accordance with 
Paragraph (d) of this Rule. 

(d) The certifications required in Paragraphs (b) and (c) of 
this Rule shall be provided on a form provided by the 
Department and shall be signed by the following individual or 
his duly authorized representative: 

(1) for a corporation, limited liabiUty company, home 
owner association or a non-profit organization: a 
president, vice president, secretary, or treasurer; 

(2) for a partnership or sole proprietorship: by a general 
partner or the proprietor; or 

(3) for a municipahty. State, Federal or other agency: by 
either a principal executive officer or ranking selected 
official. 

Authority G.S. J30A-315; J30A-3J7; P.L. 93-523; 
Amended Eff. August 1, 2000. 

.0305 APPROVALS NECESSARY BEFORE 
CONTRACTING OR CONSTRUCTING 

(a) No construction shall be undertaken, and no contract for 
construction, alteration, or installation shall be entered into 
unless the Department determines the system complies with G.S. 
130A-3 17(c) and the Department issues the authorization to 
construct letter. This authorization shall be issued following 
completion and submittal of the Engineer's Report and Water 
System Management Plan and approval of the engineering plans 
and specifications by the Department. Authorization to 
construct fi"om the Department shall be valid for twenty-four 
months from the date of the letter. Authorization to construct 
may only be extended if the rules governing a public water 
supply and site conditions have not changed. The authorization 
to construct and approval letter for engineering plans and 
specifications fi"om the Department shall be posted at the 
primary entrance of the job site before construction begins. 

(b) Upon request, permission to drill test wells at approved 
sites in order to estabhsh quality and quantity may be granted by 
the Department prior to completion and submittal of the 
Engineer's Report and Water System Management Plan and 
approval of engineering plans and specifications. All wells 
abandoned, either temporarily or permanently, shall be 
abandoned in accordance with 1.5 A NC AC 2C .0113 (Well 
Construction Standards) and all local ordinances. 



(c) Units of local government which have an adopted water 
system extension policy, upon submission to and approval of a 
copy of their policy by the Department, may be excluded fi^om 
the requirements of submitting engineering plans and 
specifications for water main extensions, and that would not 
have adverse effect upon the existmg system supply or pressure, 
provided the following requirements are met: 

(1) Engineering plans and specifications for all such 
extensions shall be prepared by or under the direct 
supervision of an engineer hcensed to practice in the 
State of North Carohna. 

(2) All engineering plans shall be approved by the units 
of local government engineering department or its 
consulting engineers prior to the commencement of 
construction. 

(3) The Department shall have approved the extension 
policy submitted by the unit of local government prior 
to construction commencing. 

(4) The extension policy submitted for review and 
approval by the Department shall provide for 
establishing ownership, operation and maintenance of 
water system extensions, and shall constitute prior 
notice of proposed construction. 

(5) Where design is to be based on a local government's 
standard specifications in heu of written separate 
specifications for each extension project, the standard 
specifications shall have been previously approved by 
the Department 

(6) The local government shall have obtained fi^om the 
Department a letter stating they have met the 
aforementioned requirement and are excluded from 
the requirement for submitting detailed engineering 
plans and specifications for each minor extension in 
keeping with the intent of this Rule. 

(7) Where such minor additions or extensions have been 
made, an annual up-to-date plan of the entire system 
shall be submitted for review and approval by the 
Department. 

Authority G.S. 130A-315: I30A-317; P.L. 93-523; 
Amended Eff. August!, 2000. 

.0307 ENGINEER'S REPORT AND, WATER SYSTEM 
MANAGEMENT PLAN AND OTHER PLANS 

(a) The applicant shall submit to the Department an 
Engineer's Report and Water System Management Plan 
covering the basic factors and principles considered in planning 
of the project. 

(b) Engineer's Report. The Engineer's Report shall contain a 
system description for the entire project, including scheduled 
phase development and the following mformation, where 
applicable: 

( 1 ) description of any existing water system related to 
this project; 

(2) identification of the municipality, community, area, or 
facility to be served by the proposed water system; 

(3) the name and address of the applicant, 

(4) a description of the nature of the estabhshments and 



14:17 



NORTH CAROLINA REGISTER 



March 1, 2000 



1562 



APPROVED RULES 



of the area to be served by the proposed water system; 

(5) a description of the future service areas of the pubHc 
water system for 5, 10, 15 and 20 years; 

(6) consideration of alternative plans for meeting the 
water supply requirements of the area, including, for 
new systems, obtaining water service from an existing 
system; 

(7) for applicants seeking State loan or grant support for 
the project, financial considerations, including, 

(A) any technical alternatives, 

(B) costs of integral units; and 

(C) total costs; 

(8) population records and trends, present andanticipated 
future water demands, present and future yield of 
source or sources of water supply, including 
provisions to supply water to other systems; 

(9) character of source or sources of water supply, 
including: 

(A) hydrological or hydrogeological data; 

(B) stream flow rates or well yields; 

(C) for surface sources, analytical results for 
chemical, mineral, bacteriological, and 
physical qualities; and 

(D) location and nature of sources of pollution; 

(10) proposed water treatment processes, including: 

(A) criteria and basis of design of units, 

(B) methods or procedures used in arriving at 
recommendations, and 

(C) reasons or justifications for any deviations 
from conventional or indicated process or 
method; 

(11) for purchased water, a copy of the agreement with the 
supplier and the hydraulic analysis showing the 
supplier's capabilities for supplying the purchased 
water; 

(12) a description of the design basis of the source, 
treatment, and distribution system, and the useful life 
of all sources, treatment, and transmission facilities 
including pipes, pumping stations, and storage 
facilities; 

(13) for existing system projects intending to alter or 
expand a distribution system, provide a statement of 
maximum daily treated water supply and maximum 
daily demand. Provide supporting documentation and 
calculations; and 

(14) for existing systems, a prioritized list of 
infrastructure improvements. 

(c) Water System Management Plan. The Water System 
Management Plan shall document, where applicable, die ability 
to finance, operate, and manage the system in accordance with 
this Subchapter for the current owner and for any entity that 
assumes ownership of the water system within the first 24 
months of operation: 
(1) Organization: 

(A) description of organizational structure or a 
chart showing all aspects of water system 
management and operation; 

(B) identification of positions responsible for 



policy decisions ensuring compliance with 
State rules and the day-to-day operation of the 
system; and 
(C) copies of any contracts for management or 
operation of the water system by persons or 
agencies other than the system's owner. 

(2) Ovmership: 

(A) identify the ownership structure (sole 
proprietor, partnership, corporation, limited 
liability company, homeowner association, 
nonprofit organization, local government unit, 
state or federal agency, or other legal entity) 
and disclose if the ownership of the system is 
expected to change once the system is 
constructed, and if known, identify the future 
owners; 

(B) provide mailing address and street address of 
the owner, and physical location of the water 
system; 

(C) disclose any encumbrances, trust indentures, 
bankruptcy decrees, legal orders or 
proceedings, or other items that may affect or 
limit the owner's control over the system and 
describe how compliance with the 
requirements of this Subchapter will still be 
maintained; and 

(D) describe the legal authority, such as ownership, 
leases or recorded easements allowing 
inspection repair and maintenance of system 
components. 

(3) Management quahfications: 

(A) describe the qualifications of the ovmers and 
managers of the water system, including any 
training and experience in owning or managing 
a water system; and 

(B) provide the name and Pubhc Water Supply 
Identification Number of all public water 
systems owned within the last five years as 
well as any systems operated under contract 
for another owner within the last five years. 
For systems with administrative penalties 
assessed, describe how the owner will prevent 
similar violations at this system. 

(4) Management training. Describe plans to keep 
management current with regulatory requirements for 
managing and operating a public water system. 

(5) Policies. At a minimum, the system shall have 
pohcies regarding the following procedures: 

(A) cross-connection control; 

(B) customer information, complaints, and public 
education; 

(C) budget development and rate structure; 

(D) response and notification if water quahty 
violations occur; 

(E) customer connection, disconnection, billing, 
and collection; and 

(F) safety procedures. 

(6) System monitoring, reporting and record keeping. At 



1563 



NORTH CAROLINA REGISTER 



March I, 2000 



14:17 



APPROVED RULES 



a minimum the applicant shall provide: 

(A) A summary of the applicable system 
monitoring and reporting requirements; and 

(B) A description of procedures for keeping and 
compiling records and repons in accordance 
with Rule .1526 of this Subchapter. 

(7) Financial Plans. The plan shall contain the following 
financial information, where apphcable; 

(A) Units of Local Government: 

(i) For projects that require the unit of local 
government to incur debt, tJie unit of 
local government shall submit a 
statement fi^om the Local Government 
Commission stating that debt issue has 
been approved; or 
(ii) For projects that do not require the xmit 
of local government to incur debt, the 
unit of local government shall submit 
the following: 

(I) a statement fi-om the unit of local 
government documenting that 
they are in compliance with G. S. 
159, Article 3, The Local 
Government Budget and Fiscal 
Control Act; and 
(II) estimated revenues, expenditures 
and rate structure for the 
construction, operation and 
maintenance, administration and 
reasonable expansion of the 
project. This information shall 
be provided on a form designated 
by the Department and shall 
demonstrate that revenues are 
greater than expenses. 

(B) The North Carohna Utilities Commission's 
financial determination may be used as the 
financial plan for systems subject to its 
regulations: 

(i) submit a copy of the Order Granting 
Franchise and Approving Rates from the 
North Carolina Utility Commission, or 

(ii) submit a copy of the Order Recognizing 
Continuous Extension and Approvmg 
Rates fi-om the North Carolina Utihties 
Commission. 

(C) All other community and non-transient non- 
community water systems shall document the 
foUowing: 

(i) analysis that compares anticipated 
revenues with planned expenditures for 
a five year period that demonstrates a 
positive cash flow in each year, and a 
20-year equipment replacement cost 
plan documenting the method(s) to 
finance equipment replacement; 

(ii) the creation and fimding of a continuous 
operating cash reserve greater than or 



equal to one-eighth of the annual 
operating, maintenance and 
admimstrative expenses for the water 
system. The reserve shall be fiilly 
fimded by the end of the first year of 
operation; 
(iii) the creation and fimding of an 
emergency cash reserve greater than or 
equal the cost of replacing the largest 
capacity pump. The reserve shall be 
fiilly fimded by the end of the fifth year 
of operation; 
(iv) a description of the budget and 
expenditure control procedures that 
assure budget control for the applicant 
which includes procedures or policies to 
prevent misuse of funds and a 
demonstration that the system has 
adopted generally accepted accounting 
procedures; and 
(v) in lieu of Sub-Items (ii) and (iii) of this 
Paragraph, substitute documentation 
may be accepted in the following 
instances: 

(I) an applicant with multiple water 

systems showing reserves 

affording greater or equal 

capabihties, or 

(II) an applicant showing equivalent 

financial capacity to comply with 

requirements of this Section. 

(8) One Water System Management Plan may be 

submitted on behalf of an apphcant owning and 

operating multiple water systems or an applicant 

pursuing multiple alterations or expansions and may 

include fiiture projected construction or system 

acquisitions. The applicant shall submit a new Water 

System Management Plan for a project not covered 

under the existing Water System Management Plan or 

when violations of this Subchapter occur or continue 

at a system under an applicant's ownership or control. 

(d) Operation and Maintenance Plan. The plan does not have 
to be submitted to the Department but shall be completed prior 
to submitting the applicant's certification in accordance with 
Paragraph (c) of Rule .0303 of this Section. This plan shall be 
accessible to operator on duty at all times and available to the 
Department upon request. The Operation and Maintenance Plan 
shaU mclude, at a minimum, a description of the location and 
routine operation and maintenance procedures for: 

(1) components of the treatment facility; 

(2) pumps, meters, valves, blowoffs, and hydrants; 

(3) backflow devices; 

(4) storage tanks; and 

(5) aM other appurtenances requiring routine operation 
and maintenance. 

(e) Emergency Management Plan. The plan does not have to 
be submitted to the Department, but shall be completed prior to 
submitting the applicant certification required in Paragraph (c) 



14:17 



NORTH CAROLINA REGISTER 



March 1, 2000 



1564 



APPROVED RULES 



of Rule .0303 of this Section. The Emergency Management 
Plan shall be available to personnel responsible for emergency 
management and operator on duty at all times and available to 
the Department upon request. The plan shall contain the 
following information where applicable: 

(1) For community water systems, a plan with the 
following elements is required: 

(A) identification and phone numbers of personnel 
responsible for emergency management, 
including system, local, state, and federal 
emergency contacts; 

(B) identification of foreseeable natural and 
human-caused emergency event including 
water shortages and outages; 

(C) description of the emergency response plan for 
each identified event; 

(D) description of the notificadon procedures; and 

(E) identification and evaluation of all facihties 
and equipment whose failure would result in a 
water outage or water quality violations. 

(2 ) For non-transient, non-community water systems, the 
plan shall contain the positions and phone numbers of 
responsible persons to contact in the event of an 
emergency, including system, local, state, and federal 
emergency contacts. 

Authority G.S. J30A-315: 130A-3J7; P.L 93-523; 
Amended Eff. August I, 2000. 

.0309 FINAL APPROVAL 

(a) No construction, alteration, or expansion of a water 
system, subject to approval as described in Section .0300 of this 
Subchapter, shall be placed into final service or made available 
for human consimiption until the applicant has comphed fiiUy 
with Section .0300 of this Subchapter and received Final 
Approval fi^om the Department. 

(b) Temporary approval may be granted by the Department 
for system alterations required to remedy an imminent hazard as 
determined by the Department. 

Authority G.S. 130A-315: I30A-317; P.L. 93-523; 
Adoption Eff. August 1, 2000. 

SECTION .1300 - OPERATION OF PUBLIC WATER 
SUPPLIES 

.1304 WATER SYSTEM OPERATION AND 
MAINTENANCE 

(a) Water systems shall be operated and maintained in 
accordance with applicable approved engineering plans and 
specifications. Water System Management Plan and Operation 
and Maintenance Plan. 

(b) Water systems shall be operated and maintained in 
accordance with ISA NCAC 18D, Rules Governing Water 
Treatment Facility Operators, Rule .0206 and G.S. 90A-29. 

Authority G.S. 130A-315; 90A-29; P.L. 93-523; 
Adopted Eff. August /, 2000. 



TITLE 21 - OCCUPATIONAL LICENSING BOARDS 

CHAPTER 46 - BOARD OF PHARMACY 

SECTION .1800 - PRESCRIPTIONS 

.1814 AUTOMATED DISPENSING OR DRUG 
SUPPLY DEVICES 

(a) Automated dispensing or drug supply devices may be 
used in health care facility pharmacies and where a pharmacy 
permit exists, for maintaining patient care unit medication 
inventories or for a patient profile dispensing system, provided 
the utilization of such devices is under the supervision of a 
pharmacist. The pharmacist-manager shall develop and 
implement procedures to assure safe and effective use of 
medications, and, at a minimum, shall assure that: 

(1) only authorized personnel, as indicated by written 
policies and procedures, may obtain access to the 
drug inventories; 

(2) all drugs therein are reviewed no less than monthly; 

(3) a system of accountability must exist for all drugs 
contained therein; the purity, potency, and integrity of 
the drugs shall be preserved; 

(4) the device provides records required by this Section 
and other apphcable laws and rules; 

(5) requirements for controlled substances security are 
met; and 

(6) except as provided in subsection (b) of this Rule, 
prior to the drug being released for access by the 
nurse, the pharmacist enters the medication order into 
a computerized pharmacy profile that is interfaced to 
the automated dispensing unit, so that drug allergy 
screening, therapeuric duplication, and appropriate 
dose verification is done prior to the drug being 
administered. 

(b) Automated Dispensing or Drug Supply Devices may be 
used without an interfaced pharmacy information system or in 
an override capacity with such a system where the medications 
are being provided as floor stock controlled substances, limited 
starter doses or PRN doses. This does not preclude the 
medication order for such drugs being entered into the pharmacy 
profile for therapeutic checks. Such units may also be used 
without a pharmacy profile interface when being used to provide 
ancillary drug inventories, as defined in Rule .1414(g) of this 
Chapter and when being used as an emergency kit as defined in 
Rule .1414(i) of this Chapter. 

(c) Pharmacist supervision shall include: 

( 1 ) The packaging and labeling of drugs to be placed in 
the dispensing devices. Such packaging and labeling 
shall conform to all requirements pertaining to 
containers and label contents; 

(2) The placing of previously packaged and labeled drug 
units into the dispensing device; 

(3) The removal of the drug from the dispensing device 
and the final labeling of the drug after removal from 
the dispensing device; and 



1565 



NORTH CAROLINA REGISTER 



March 1, 2000 



14:17 



APPROVED RULES 



(4) In the absence of a pharmacist, a person legally 
quahfied to administer drugs may remove drugs from 
the dispensing devices only m the quantity of doses 
needed to satisfy immediate patient needs. 

(d) Bar code scanning of drug packaging and storage units 
may be utilized as a quality control mechanism if this 
technology is available in the automated dispensing system. 

(e) Restocking of automated dispensmg devices may be done 
by pharmacy technicians under the supervision of the 
pharmacist. 

Authority G.S 90-85.6; 90-85.32; 90-85.33; 
Eff. August 1, 2000. 



TITLE 24 - INDEPENDENT AGENCIES 

CHAPTER 1 - N.C. HOUSING FINANCE AGENCY 

SUBCHAPTER IH - MULTI-FAMILY SUBSIDIZED 
RENTAL PROGRAM 

SECTION .0100- GENERAL INFORMATION 

.0103 PERSONS AND FAMILIES OF MODERATE 
INCOME 

The agency shall apply the following factors in determining 
that persons and families are of moderate income: 

(i) The agency shall use 150 percent of median income 
as published periodically by the Department of 
Housing and Urban Development. 

(2) Housing construction costs shall be determined for a 
prototype of modest housing using the average area 
purchase price limits for single family residences, as 
pubhshed by the Bureau of National Affairs, Inc., and 
which limit the amount of income a person can have 
to be able to occupy rental housing. 

(3) Mortgage lending industry underwriting standards, 
which establish the amount of loan for which a 
sponsor may qualify, will be used by the agency. The 
agency assumes the sponsor would seek financing at 
a 30-year amortization rate and the tenant will be 
restricted to using 30 percent of his gross monthly 
income as rent to make the project feasible. 

(4) Composite figures for median income and for housing 
costs and mortgage loans underwriting are calculated 
upon the following premises: 

(A) The median income factor relates to eligibility 
for other housing predicated upon a moderate 
income basis. 



(B) The house cost/underwriting figure establishes 
minimum financial eligibility in the normal 
housing market 
The combination of the two figures at a 50:50 ration estabhshes 
the maximum moderate income limits for the agency. 

(b) An apphcant's income shall be calculated by including all 
income in whatever form and from whatever source derived, 
including the following: compensation for services, including 
fees, commission and similar items; gross income derived from 
business; gains derived from dealings in property; interest; rents; 
royalties; dividends; alimony and separate maintenance 
payments; annuities; income from life insurance and endowment 
contracts; pensions; income from discharge of indebtedness; 
distributive share of partnership income; income in respect of a 
decedent; income from an interest in an estate or trust; payment 
made by or on behalf of an employer by reason of death of an 
employee to the widow or heirs of the employee; recovery of 
bad debts; amount received as reimbursement for losses, prizes 
and awards; amounts received ormade available from individual 
retirement accounts, annuities and retirement bonds. In 
addition, the calculation of an applicant's income for this 
purpose will be increased by an amount equal to ten percent of 
the value of all the applicant's non-income producing tangible 
assets, excepting personal property and including real property, 
securities and stocks. 

(c) The agency deems that persons and families with annual 
incomes not in excess of the income limits established by 
applicafion of the formula in this Rule are persons and families 
which require such assistance as is made available by the Act 
and such persons and families are hereby deemed, therefore, to 
be persons of moderate income eligible to occupy residential 
housing financed by means of such assistance. 



Authority G.S. 122A-3; 
Eff. August 1, 2000. 



122A-5; 122A-5.4; 



14:17 



NORTH CAROLINA REGISTER 



March 1, 2000 



1566 



RULES REVIEW COMMISSION 



This Section contains the agenda for the next meeting of the Rules Review Commission on Thursday. March 16. 2000. 10:00 
a.m.. at 1 307 Glenwood Ave., Assembly Room, Raleigh, NC. Anyone washing to submit written comment on any rule before 
the Commission should submit those comments to the RRC staff, the agency, and the individual Commissioners by Friday. 
March 10. 2000. at 5:00 p.m. Specific instructions and addresses may be obtained from the Rules Review Comnrission at 
9 1 9-733-272 1 . Anyone wishing to address the Commission should notify the RRCstaff and the agency at least 24 hours prior 
to the meeting. 



RULES REVIEW COMMISSION MEMBERS 



Appointed by Senate 

Teresa L. Smallwood, Vice Chairman 
John Arrowood 

Laura Devan 

Jim Funderburke 

David Twiddy 



Appointed by House 

Paul Powell, Chairman 

Walter Futch 

Jennie J. Hayman 

George Robinson 

R. Palmer Sugg 



RULES REVIEW COMMISSION MEETING DATES 

March 16,2000 
April 13,2000 



LOG OF FILINGS 
RULES SUBMITTED: January 20, 2000 through February 20, 2000 



AGENCY/DIVISION 



7567 



RULE NAME 


RULE OTATION 


ACTION 


:rce/information technology services 




Forms, Terms and Conditions 


4NCAC21A.0101 


Adopt 


Definitions 


4NCAC21A.0102 


Adopt 


Benchmark 


4NCAC21A.0103 


Adopt 


Procedure 


4NCAC21B.0101 


Adopt 


Verbal Requests 


4NCAC21B.0102 


Adopt 


Confidentiality 


4NCAC21B.0I03 


Adopt 


Types of Specifications 


4NCAC21B .0201 


Adopt 


Need 


4NCAC21B.0202 


Adopt 


Development of Specifications 


4NCAC21B.0203 


Adopt 


Articles for Special Purposes 


4 NC AC 2 IB. 0204 


Adopt 


Submission for Adoption 


4NCAC21B.0205 


Adopt 


Copies of Specifications 


4NCAC21B.0206 


Adopt 


Confidentiality 


4NCAC21B.0207 


Adopt 


Procurement Procedures 


4NCAC21B.0301 


Adopt 


Methods of Source Selection 


4NCAC21B.0302 


Adopt 


Electronic, Facsimile and Telephone 


4NCAC21B.0303 


Adopt 


Offers 






Recall of Offers 


4 NC AC 2 IB. 0304 


Adopt 


Public Opening 


4NCAC21B.0305 


Adopt 


Late Offers, Modifications, or 


4NCAC21B.0306 


Adopt 


Withdrawals 






Error/Clarification 


4NCAC21B.0307 


Adopt 


Extension of Acceptance Time 


4NCAC21B.0308 


Adopt 


Evaluation 


4NCAC21B.0309 


Adopt 


Notification of Award 


4NCAC21B 0310 


Adopt 


Lack of Competition 


4NCAC21B.0311 


Adopt 


Solicitation Documents 


4NCAC21B.0312 


Adopt 


Division of Requirements 


4NCAC21B.0313 


Adopt 


Advertisement Requirements 


4NCAC21B.0314 


Adopt 


NOR TH CAROLINA REGISTER March 1, 2000 



14:17 



RULES REVIEW COMMISSION 



Mandatory Conferences/Site Visits 


4NCAC21B.0315 


Adopt 


Basis for Rejection 


4NCAC21B.0401 


Adopt 


Public Record 


4NCAC21B.0402 


Adopt 


Negotiation 


4NCAC21B.0403 


Adopt 


Responsibility 


4NCAC21B 0501 


Adopt 


Selection 


4NCAC21B.0502 


Adopt 


Samples 


4NCAC21B.0503 


Adopt 


Specifications 


4NCAC21B.0504 


Adopt 


Report of Discrepancy 


4NCAC21B,0505 


Adopt 


Enforcement 


4NCAC21B,0601 


Adopt 


Report to Purchasing 


4NCAC21B,0602 


Adopt 


Responsibility 


4NCAC21B.0603 


Adopt 


Use and Description 


4NCAC21B,0701 


Adopt 


Determining Factors 


4NCAC21B.0702 


Adopt 


Extension of Contract Termination Dates 


4NCAC21B.0703 


Adopt 


Use 


4NCAC21B.0801 


Adopt 


Policy 


4NCAC21B.0901 


Adopt 


Approval and Documentation 


4NCAC21B.0902 


Adopt 


Confidentiality 


4NCAC21B.1001 


Adopt 


Payment Plans 


4NCAC21B.1002 


Adopt 


Change in Corporate Structure 


4NCAC21B.1003 


Adopt 


Purchasing from or through Employees 


4NCAC21B.1004 


Adopt 


Antitrust Violations 


4NCAC21B.1005 


Adopt 


Cooperative Purchasing 


4NCAC21B.1006 


Adopt 


Reserved for Future Codification 


4NCAC21B.1007 


Adopt 


Board of Awards 


4NCAC21B.1008 


Adopt 


Protest Procedures 


4NCAC21B.1009 


Adopt 


Right to Hearing 


4NCAC21B.1010 


Adopt 


Request for Hearing 


4NCAC21B.1011 


Adopt 


Definitions 


4NCAC21B.1012 


Adopt 


General Provisions 


4NCAC21B.1013 


Adopt 


Order for Prehearing Statements 


4NCAC21B.1014 


Adopt 


Duties of the Heanng Officer 


4NCAC21B.1015 


Adopt 


Consent Order; Settlement; Stipulation 


4NCAC21B,1016 


Adopt 


Settlement Conference 


4NCAC21B.1017 


Adopt 


dPrehearing Conference 


4NCAC21B.1018 


Adopt 


Consohdation of Cases 


4NCAC21B 1019 


Adopt 


Discovery 


4NCAC21B.1020 


Adopt 


Subpoenas 


4NCAC21B.1021 


Adopt 


Sancrions 


4NCAC21B 1022 


Adopt 


Motions 


4NCAC21B.1023 


Adopt 


Intervention 


4NCAC21B.1024 


Adopt 


Continuances 


4NCAC21B.1025 


Adopt 


Rights and Responsibilities of Parties 


4NCAC21B.1026 


Adopt 


Witnesses 


4NCAC21B.1027 


Adopt 


Evidence 


4NCAC21B.1028 


Adopt 


Official Record 


4NCAC21B,1029 


Adopt 


Default Proceedings; Debannent 


4NCAC21B.1030 


Adopt 


Faithfial Performance 


4NCAC21B.1031 


Adopt 


Exemptions 


4NCAC21B.1101 


Adopt 


Emergencies 


4NCAC21B.1102 


Adopt 


Special Delegations 


4NCAC21B.1103 


Adopt 


General Delegations 


4NCAC21B.1104 


Adopt 


Compliance Reviews 


4NCAC21B 1105 


Adopt 


Record Maintenance 


4NCAC21B.1201 


Adopt 


Records 


4NCAC21B.1202 


Adopt 


DHHS/SOCIAL SERVICES COMMISSION 






Definitions 


10NCAC42A.0801 


Adopt 



14:17 



NORTH CAROLINA REGISTER 



March 1, 2000 



1568 



RULES REVIEW COMMISSION 



Availability of the Service 


10 NCAC 42A .0802 


Adopt 


Definition of the Service 


10 NCAC 42A ,0803 


Adopt 


Target Population 


10 NCAC 42A .0804 


Adopt 


Resident Evaluation Instrument 


10 NCAC 42A .0805 


Adopt 


Evaluation and Referral 


10 NCAC 42 A .0806 


Adopt 


Triage Procedure 


10 NCAC 42A .0807 


Adopt 


Training Requirements for Resident 


10 NCAC 42A .0808 


Adopt 


Evaluators 






Methods of Service Provision 


10 NCAC 42A .0809 


Adopt 


Case Record 


10 NCAC 42A .0810 


Adopt 


Definitions 


10 NCAC 42E .0801 


Amend 


Disclosure 


10 NCAC 42E. 1501 


Adopt 


Policies and Procedures 


10NCAC42E.1502 


Adopt 


Definitions 


10 NCAC 42Z ,0108 


Adopt 


Disclosure 


10 NCAC 42Z. 1001 


Adopt 


DHHS/SOCIAL SERVICES COMMISSION 






Eligibihty Determination Process 


10NCAC47B .0103 


Amend 


Re-evaluation 


10 NCAC 47B .0204 


Adopt 


Evaluation 


10 NCAC 47B .0407 


Adopt 


DEPARTMENT OF INSURANCE 






Manuscript or Individual Risk Filings 


11 NCAC 10.0105 


Amend 


Workers' Compensation Loss Costs 


11 NCAC 10.0110 


Amend 


Questionnaire 






DEPARTMENT OF INSURANCE 






Apphcabihty 


11 NCAC 1 IF .0401 


Amend 


Definitions 


11 NCAC 1 IF .0402 


Amend 


Basic and Premium Deficiency Reserves 


11 NCAC 1 IF. 0403 


Amend 


Calculation of .040 1(b) 


11 NCAC 1 IF ,0404 


Amend 


Calculation of .040 1(c) 


11 NCAC 1 IF ,0405 


Amend 


Definitions 


1 1 NCAC 1 IF .0501 


Adopt 


Individual Annuity or Pure Endowment 


11 NCAC 1 IF .0502 


Adopt 


Contracts 






Group Annuity or Pure Endowment 


11 NCAC 1 IF .0503 


Adopt 


Contracts 






Apphcation of the 1994 GAR Table 


11 NCAC 1 IF .0504 


Adopt 


DEPARTMENT OF INSURANCE 






Definitions 


11 NCAC 12.1701 


Amend 


Viarical Settlement Providers 


11 NCAC 12.1702 


Amend 


Viatical Settlement Brokers and 


11 NCAC 12,1703 


Amend 


Representatives 






Solicitation 


11 NCAC 12,1707 


Amend 


Disclosure 


11 NCAC 12.1709 


Amend 


Ten-Day Notice 


11 NCAC 13.0317 


Amend 


Notice of Cancellation 


11 NCAC 13 .0318 


Amend 


Dishonored Checks 


11 NCAC 13 .0324 


Amend 


Premium Finance Agreement Type Std. 


11 NCAC 13.0326 


Adopt 


JUSTICE/N C PRIVATE PROTECTIVE SERVICES BOARD 






Training Requirements for Armed 


12 NCAC 7D .0807 


Amend 


Security Guards 






DENRyENVlRONMENTAL MANAGEMENT COMMISSION 






Broad River Basia 


15 NCAC 2B .0306 


Amend 


Emission Standards 


15 NCAC 2D. 1703 


Amend 


Reporting Requirements 


15 NCAC 2D. 1708 


Amend 


Recordkeeping Requirements 


15 NCAC 2D. 1709 


Amend 


Applicability 


15 NCAC 2D ,2101 


Adopt 


Definitions 


15 NCAC 2D ,2102 


Adopt 


Requirements 


15 NCAC 2D ,2103 


Adopt 


Implementarion 


15 NCAC 2D ,2104 


Adopt 



1569 



NORTH CAROLINA REGISTER 



March 1, 2000 



14:17 



RULES REVIEW COMMISSION 



Cleanup Costs 


15 NCAC 2P .0402 


Adopt 


General 


15 NCAC 2S .0101 


Adopt 


Definitions 


15 NCAC 2S .0102 


Adopt 


Applicability 


15 NCAC 2S .0201 


Adopt 


Required Minimum Management Practices 15 NCAC 2S .0202 


Adopt 


DENR/COMMISSION FOR HEALTH SERVICES 






General 


15 NCAC 13A .0101 


Amend 


Definitions 


15 NCAC 13A 0102 


Amend 


Petitions-Part 260 


15 NCAC 13A .0103 


Amend 


Public Information - Part 2 


15 NCAC 13A .0104 


Amend 


Identification and Listing of Hazardous 


15 NCAC 13A.0106 


Amend 


Wastes 






Stds Applicable to Transporters of 


15 NCAC 13A.0108 


Amend 


Hazardous Waste 






Interim Status Stds for Owners 


15 NCAC 13A .0110 


Amend 


Land Disposal Restrictions - Part 268 


15 NCAC 13A .01 12 


Amend 


The Hazardous Waste Permit Program 


15 NCAC 13A .01 13 


Amend 


Standards for the Management of Used 
Oil 
DENR 


15 NCAC 13A .01 18 


Amend 






Definitions 


15 NCAC 18A .0134 


Amend 


Hazard Analysis 


15 NCAC ISA .0188 


Adopt 


HACCP Plan 


15 NCAC 18A .0189 


Adopt 


Sanitation Monitoring Requirements 


15 NCAC 18A.0190 


Adopt 


Monitoring Records 


15 NCAC 18A .0191 


Adopt 


Definitions 


15 NCAC 18A .0301 


Amend 


Hazard Analysis 


15 NCAC 18A.0433 


Adopt 


HACCP Plan 


15 NCAC 18A.0434 


Adopt 


Sanitation Monitoring Requirements 


15 NCAC 18A .0435 


Adopt 


Design Details 


15 NCAC 18A .2515 


Amend 


Total Trihalomethanes Samphng and 


15 NCAC 18C. 1513 


Amend 


Analysis 






Consumer Confidence Report 


15 NCAC 18C.1538 


Adopt 


Enhanced Filtration and Disinfection 


15 NCAC 18C 2007 


Adopt 


Disinfectants and Disinfection ByProducts 


15 NCAC 18C.2008 


Adopt 


DENR/COMMISSION FOR HEALTH SERVICES 






General 


15 NCAC 21F. 1201 


Adopt 


Definitions 


15 NCAC 21F. 1202 


Adopt 


Screening Requirements 


15 NCAC 2 IF. 1203 


Adopt 


Reporting Requiiements 


15 NCAC 2 IF. 1204 


Adopt 


Submission of Blook Specimens for 


15 NCAC 21H .0314 


Amend 


Screening 






DENR/COMMISSION FOR HEALTH SERVICES 






Reimbursement for Patient Hospitalizatior 


1 15 NCAC 24A .0402 


Amend 


Reimbursement for Patient Hospitalizatior 


1 15 NCAC 24A .0403 


Amend 


EDUCATION, STATE BOARD OF 






Nature of Licensure 


16 NCAC 6C .0102 


Amend 


State Board of Education Action 


16 NCAC 6C ,0103 


Amend 


Apphcation for Approval; Criteria 


16 NCAC 6C .0202 


Amend 


State Board Review Standards and 


16 NCAC 6C .0205 


Repeal 


Approval Actions 






Consortium-Based Programs and 


16 NCAC 6C .0206 


Repeal 


Innovative Programs 






Prospective Teacher Scholarship Loans 


16 NCAC 6C .0207 


Amend 


General Information 


16 NCAC 6C .0301 


Amend 


Credit 


16 NCAC 6C .0302 


Amend 


Program Requirements for Licensure 


16 NCAC 6C 0303 


Amend 


License Patterns 


16 NCAC 6C .0304 


Amend 



14:17 



NORTH CAROLINA REGISTER 



March 1, 2000 



1570 



RULES REVIEW COMMISSION 



Licenses for Non-Teacher Education 


16NCAC6C.0305 


Amend 


Graduates 






License Endorsement 


16NCAC6C.0306 


Amend 


License Renewal 


16NCAC6C.0307 


Amend 


Expired Licenses 


16 NCAC 6C .0308 


Amend 


Reciprocity in Licensure 


16NCAC6C.0309 


Amend 


Temporary Permit 


16 NCAC 6C .0311 


Amend 


License Suspension and Revocation 


16 NCAC 6C .0312 


Amend 


Criminal History Checks 


16 NCAC 6C .0313 


Amend 


Interscholastic Athletics 


16 NCAC 6E 0202 


Amend 


Charter School Advisory Committee 


16 NCAC 6G .0502 


Adopt 


Complaint Procedures for Federal 


16 NCAC 6H ,0103 


Amend 


Programs 






Non-Instructional Special Education 


16 NCAC 6H .0106 


Amend 


Services 






REVENUE, DEPARTMENT OF 






Method of Payment 


17 NCAC IC .0502 


Amend 


EFT General Requirements 


17 NCAC IC .0504 


Amend 


Voluntary EFT Program Participation 


17 NCAC IC .0506 


Amend 


EFT Payment Procedures-General 


17 NCAC 1C.0509 


Amend 


Provisions 






Substitute Forms 


17 NCAC IC .0601 


Amend 


Step-Grandchildren 


17 NCAC 3B .0302 


Repeal 


Extensions 


17 NCAC 3C .0008 


Amend 


Apphcation for Privilege License 


17 NCAC 4B .4301 


Repeal 


Privilege License 


17 NCAC 4B .4302 


Repeal 


Penalty Provisions 


17 NCAC 4B .4401 


Repeal 


Rate or Penalty; Interest 


17 NCAC 4B .4402 


Repeal 


Questionnaires 


17 NCAC 4E .0703 


Amend 


Form to be Used for Filing 


17 NCAC 5B .0603 


Repeal 


Corporation Billed for the Tax 


17 NCAC 5B .0803 


Repeal 


Corporation Billed for the Tax 


17 NCAC 5B .0903 


Repeal 


Borrowed Capital Defined 


17 NCAC 5B. 1112 


Repeal 


Business and Nonbusiness Income 


17 NCAC 5C .0702 


Repeal 


Defined 






Business and Nonbusiness Income 


17 NCAC 5C .0703 


Amend 


Interest and Penalties 


17 NCAC 5C .2003 


Repeal 


Solar Energy Equipment Tax Credit 


17 NCAC 6B .0605 


Amend 


Waiver of Time Limitation 


17 NCAC 6B .3408 


Repeal 


partnership Returns 


17 NCAC 6B .3503 


Amend 


Returns 


17 NCAC 7B .0104 


Amend 


Change in Ownership 


17 NCAC 7B .01 18 


Amend 


Commercial Fishermen 


17 NCAC 7B .0123 


Amend 


Purchases by Manufacturers 


17 NCAC 7B .0207 


Amend 


Prescription Medicine and Drugs 


1 7 NCAC 7B. 1401 


Amend 


Medical Supplies and Equipment 


17NCAC7B.1404 


Amend 


Institutions: Etc. 


17 NCAC 7B. 1601 


Amend 


Refimds to Nonprofit Entities 


17NCAC7B.1602 


Amend 


Refunds to Counties, Cities, Etc. 


17NCAC7B.1702 


Amend 


Sales to and by Hospitals 


17 NCAC 7B. 1801 


Amend 


Refimds-Hospitals & Similar Institutions 


17NCAC7B.1802 


Amend 


Secondhand Tires 


17NCAC7B.1902 


Amend 


Service Charge 


17 NCAC 7B .2213 


Amend 


Sales to Veterinarians 


17 NCAC 7B .2401 


Amend 


Sales by Veterinarians 


17 NCAC 7B .2402 


Amend 


Florist; Nurserymen: Greenhouse Oper. 


17 NCAC 7B .2801 


Amend 


Sales through Vending Machines 


17 NCAC 7B .2901 


Amend 


Exclusion of Tax fi-om Receipts 


17 NCAC 7B .2903 


Repeal 



1571 



NORTH CAROLINA REGISTER 



March 1, 2000 



14:17 



RULES REVIEW COMMISSION 



Trade-Ins 


17NCAC7B.3001 


Amend 


Secondhand Property 


17NCAC7B 3004 


Amend 


Trade-Ins; Transfer to New Business 


17NCAC7B3009 


Amend 


Trade-ins on Exempt Sales 


17NCAC7B.3010 


Repeal 


Used Parts from Junked Property 


17NCAC7B.3013 


Amend 


Cellular Telephone Companies 


17 NCAC 7B .3204 


Amend 


Refimds to Interstate Carriers 


17NCAC7B.4301 


Amend 


Reftmd Claims: Limitations 


17 NCAC 7B .4303 


Amend 


Refimds 


17 NCAC 91 .0302 


Amend 


Record-Keeping Requirements 


17 NCAC 9K 0602 


Amend 


Reporting Sales and Deliveries 


17 NCAC 9L .0403 


Repeal 


Location 


17 NCAC 10.0101 


Repeal 


Procedure for Claiming Exclusion 


17 NCAC 10.0405 


Amend 


Certification Reqmnts for Cty Assessors 


17 NCAC 10 .0504 


Amend 


Continuing Education Requirements 


17 NCAC 10.0505 


Amend 


TRANSPORTATION, DEPARTMENT OF/DIVISION OF HIGHWAYS 




Requests for Permits 


19 NCAC 2E .0602 


Amend 


School Bus Driver Certificates 


19 NCAC 3G .0203 


Amend 


Issuing of Original Certificate 


19 NCAC 3G .0205 


Amend 


Period of Certification 


19 NCAC 3G .0206 


Amend 


Renewal of Certification 


19 NCAC 3G .0207 


Amend 


Cancellation of Certification 


19 NCAC 3G .0209 


Amend 


Renewal of Certification After 


19 NCAC 3G .0213 


Amend 


Cancellation 






STATE BOARDS/N C BOARD OF ARCHITECTURE 






Written Examination 


21 NCAC 2. 0302 


Amend 


Registration by Reciprocity without 


21 NCAC 2. 0303 


Amend 


Written Exam 






STATE BOARDS/N C BOARD FOR LICENSING OF GEOLOGISTS 




Filing of Charges 


21 NCAC 21 .0501 


Amend 


Reprimand 


21 NCAC 21 .0502 


Amend 


Investigation 


21 NCAC 21 .0514 


Amend 


Disciplinary Procedure 


21 NCAC 21 .0515 


Amend 


Rules of Professional Conduct 


21 NCAC 21 .1101 


Adopt 


Rules of Conduct of Advertising 


21 NCAC 21 .1102 


Adopt 


STATE BOARDS/N C BOARD OF NURSING 






Refresher Course 


21 NCAC 36 .0220 


Amend 


Licensure Required 


21 NCAC 36 .0221 


Amend 


Approval/Pracfice Parameters-Nurse Prac 


21 NCAC 36 .0227 


Amend 


Faculty 


21 NCAC 36 ,0318 


Amend 


Listing and Renewal 


21 NCAC 36 .0404 


Amend 


Approval of Nurse Aide Ed Programs 


21 NCAC 36 .0405 


Amend 


Definitions of Terms in the Compact 


21 NCAC 36 .0701 


Adopt 


Issuance of a License by a Compact 


21 NCAC 36 .0702 


Adopt 


Party State 






Limitations on Multistate Licensure 


21 NCAC 36 .0703 


Adopt 


Privilege 






Information System 


21 NCAC 36 .0704 


Adopt 


Party State Licensure Requirements 


21 NCAC 36 0705 


Adopt 


STATE BOARDS/N C STATE BOARD OF EXAMINERS FOR NURSING HOME ADMINISTRATORS 


Initial Licensure Fee 


21 NCAC 37D 0202 


Amend 


Combination of Education and Experience 


; 21 NCAC 37D .0302 


Amend 


Required Course 


2rNCAC37D.0303 


Amend 


Traimng Permit 


21 NCAC 37D .0403 


Amend 


Administrator-m-Training Program 


21 NCAC 37D .0405 


Amend 


AIT Time on the Job 


21 NCAC 37D .0407 


Amend 


Preceptor Quahfications 


21 NCAC37D 0502 


Amend 


Preceptor Compliance 


21 NCAC 37D .0504 


Adopt 



14:17 



NORTH CAROLINA REGISTER 



March 1, 2000 



1572 



RULES REVIEW COMMISSION 



STATE BOARDS/STATE 
CONTRACTORS 



Eligibility 

National Examination Administration 
Subject Areas 
Eligibility 
Grade Required 
Application Process 
Application Contents 
Application Contents 
Prerequisites for Temporary License 
Issuance/Renewal of Temporary License 
Issuance/Renewal of Temporary License 
Renewal Fee 

Inactive Status Requirements 
Inactive Status Requirements 
Continuing Education Programs of Study 
Continuing Education Programs of Study 
Preceptor Credit 

Investigation: Discipline: and Contested 
Case Proc 
BOARD OF EXAMINERS OF PLUMBING, 



21 NCAC 37D .0601 Amend 

2 1 NCAC 37D .0603 Amend 

2 1 NCAC 37D .0605 Amend 

21 NCAC 37D .0701 Amend 

21 NCAC 37D. 0704 Adopt 

21 NCAC 37E .0101 Amend 

21 NCAC 37E. 0102 Amend 

21 NCAC 37E .0102 Amend 

21 NCAC 37F .0101 Amend 

21 NCAC 37F .0102 Amend 

21 NCAC 37F .0102 Amend 

21 NCAC 37G .0102 Amend 

21 NCAC 37G .0201 Amend 

2 1 NCAC 37G .020 1 Amend 

21 NCAC 37H .0102 Amend 

21 NCAC 37H .0102 Amend 

21 NCAC 37H .0104 Amend 

21 NCAC 371 .0101 Amend 



HEATING, AND FIRE SPRINKLER 



Special Examinations 2 1 NCAC 50 .0304 

Applications for Licensure by Reciprocity 2 1 NCAC 50.0310 



Permits 

Active Employment 

Responsibility of Licensed Person 

Guidelines on Disciplinary Actions 

Air Conditioning Further Defined 

Heating: License Required Alterations 

Employees Exempted from Licensure 

Right to Hearing 

Notice of Hearing 

Informal Procedures 

Petition for Intervention 

Types of Intervention 

Disqualification of Board Members 

Subpoenas 

Witnesses 

Proposals for Decision 

Administrative Hearing Procedures 

Examination Fees 

Notice of Rulemaking Hearings 

Notice of Mailing List 

Additional Information 

Written Submissions 

Statement of Reasons for Decision 

Record of Proceedings 

Temporary Rules 
STATE BOARDS/N C BOARD OF REFRIGERATION EXAMINERS 

Office of Board 21 NCAC 60 .0102 

Requirements for Examination Applicants 21 NCAC 60 .0207 

Permits 21 NCAC 60 .0311 

Change of Address 21 NCAC 60 .0316 

Preferring Charges 2 1 NCAC 60 . 1 1 02 

STATE BOARDS/N C SUBSTANCE ABUSE PROFESSIONAL CERTIFICATION BOARD 

Definitions 21 NCAC 68 .0101 

Competence 2 1 NCAC 68 .0503 

Ghent Welfare 2 1 NCAC 68 .0507 



21 NCAC 50 ,0402 
21 NCAC 50 .0404 
21 NCAC 50 .0406 
21 NCAC 50 .0412 
21 NCAC 50 .0501 
21 NCAC 50 .0508 
21 NCAC 50 .0512 
21 NCAC 50. 1001 
21 NCAC 50 
21 NCAC 50 
21 NCAC 50 
21 NCAC 50 
21 NCAC 50 
21 NCAC 50 
21 NCAC 50 
21 NCAC 50 
21 NCAC 50 
21 NCAC 50 
21 NCAC 50 
21 NCAC 50 
21 NCAC 50 
21 NCAC 50 
21 NCAC 50 
21 NCAC 50 



1004 
1006 
1007 
1008 
1009 
1010 
1011 
1013 
1014 
1101 
1204 
1205 
1206 
1210 
1212 
1213 



21 NCAC 50. 1214 



Amend 
Amend 
Amend 
Amend 
Amend 
Amend 
Amend 
Amend 
Amend 
Repeal 
Amend 
Amend 
Repeal 
Repeal 
Repeal 
Repeal 
Repeal 
Repeal 
Amend 
Amend 
Amend 
Amend 
Repeal 
Amend 
Repeal 
Repeal 
Amend 

Amend 

Amend 

Amend 

Adopt 

Amend 

Amend 
Amend 
Amend 



1573 



NORTH CAROLINA REGISTER 



March 1, 2000 



14:17 



RULES REVIEW COMMISSION 



Client Relationships 


21NCAC68.0509 


Amend 


Remuneration 


21 NCAC68.05I1 


Amend 


Grounds for Professional Discipline 


21NCAC68.0601 


Amend 


Who Shall Hear Contested Cases 


21NCAC68.0706 


Amend 



RULES REVIEW COMMISSION 

February 17, 2000 
MINUTES 

The Rules Review Commission met on January 20, 2000, in the Assembly Room of the Methodist Building, 1307 Glenwood Avenue, 
Raleigh, North Carolina Commissioners in attendance were Vice Chairman Palmer Sugg, Jennie J. Hayman, Walter Futch, Paul 
Powell, Laura Devan, Jim R. Funderburk, David R. Twiddy, and George Robinson. 

Staff members present were; Joseph J. DeLuca, Staff Director; Bobby Bryan, Rules Review Speciahst; and Sandy Webster. 

The following people attended: 



White Watkins 
John McFadyen 
Jessica Gill 
Janice Fain 
Dedra Alston 
Tom West 
Thomas Allen 
EUie Sprenkel 
Emily Lee 
Diane Reed 
David Spratley 
Stewart Dickinson 
Mary Johnson 
Jeff Manning 
Rich Gannon 
Lin Xu 

Kathryn Jones Cooper 
Anna Baird 
Denise Stanford 
Lacy Love 
Billy Daniel 
Brenda Grady 
Gaines Weaver 

APPROVAL OF MINUTES 



AFMA 

DENR/DEH/PWSS 

DENR/Coastal Management 

DHHS/CD 

DENR 

Poyner and Spruill 

DENPv/DAQ 

Insurance 

Transportation 

DENR/DWQ 

Commerce Finance Center 

Commerce Finance Center 

Commerce Finance Center 

DENR/DWQ 

DENR/DWQ 

DENR/DWQ 

Attorney General 

Navigation & Pilotage Commission 

Licensing Board for General Contractors 

Transportation 

DOR 

Transportation 

Attorney General 



The meeting was called to order at 10;03 a.m. with Vice Chairman Sugg presiding. He asked for any discussion, comments, or 
corrections concerning the minutes of the January 20, 2000 meeting. There being none, the minutes were approved 

FOLLOW-UP MATTERS 

4 NCAC 15.0121: COMMERCE/Cape Fear River Navigation & Pilotage Commission - The rewritten rule submitted by the agency 
was approved by the Commission. 

10 NCAC 3U .0102 and .25 10: DHHS/Child Care Commission - The rewritten rules submitted by the agency were approved by the 
Commission. 

13 NCAC 7F .0601, .0602, .0603, .0604, .0605, and .0606: DEPARTMENT OF LABOR- No action was necessary on these rules. 



14:17 



NORTH CAROLINA REGISTER 



March 1, 2000 



1574 



RULES REVIEW COMMISSION 



15A NCAC 2B .0225, .0241, .0242, .0260, and .0261: DENR/Environmental Management Commission- The rewritten rules 
submitted by the agency were approved by the Commission with the exception of .0225. No rewritten rule has yet been received for 
this rule. Commissioner Sugg recused himself from .0241 and .0242. 

1 5 A NCAC 2D .1207; DENR/Environmental Management Commission - The rewritten rule submitted by the agency was approved 
by the Commission. 

15A NCAC 2Q .0103, .0508, and .0702: DENR/Environmental Management Commission - The rewritten rules submitted by the 
agency were approved by the Commission. 

1 5 A NCAC 7J .0406: DENR/Coastal Resources Commission - The rewritten rule submitted by the agency was approved by the 
Commission. 

1 5A NCAC 7M .0307 and .0403: DENR/Coastal Resources Commission - The Commission approved the rewritten .0307 submitted 
by the agency. They responded that they would answer the objections to .0403 at the April meeting. 

21 NCAC 1 .0101: N C Acupuncture Licensing Board - The rewritten rule submitted by the agency was approved by the 
Commission. 

LOG OF FILINGS 

Vice Chairman Sugg presided over the review of the log and all rules were approved with the following exceptions: 

4 NCAC 11 .0202: COMMERCE/Commerce Finance Center- The Commission objected to this rule due to ambiguity. In (c), it is 
not clear what standards the Department will use in approving out-of-state banks and other financialinstitutions. In (i), it is not clear 
what is meant by "reasonable" progress and "satisfactory" progress. 

4 NCAC 1 1 .070 1 : COMMERCE/Commerce Finance Center - The Commission objected to this rule due to lack of necessity. There 
is not anything in this rule which is not aheady in the statute and so the rule is unnecessary. 

1 5 A NCAC 2B .02 1 1 : DENR/Environmental Management Commission - The Commission objected to this rule due to ambiguity. 

In (4), it is not clear what is meant by a "significant" causative factor. The objection to this rule applies to existing langmge in the 

rule. 

15A NCAC 2B .0220: DENR/Environmental Management Commission - The Commission objected to this rule due to ambiguity. 

In (3)(a), it is not clear what is meant by "slow-moving" waters. In (3)(j), it is not clear what is meant by "appreciably" modified. 

It is also not clear what water management practices are "appropriate." In (4), it is not clear what is meant by a "significait" causative 

factor. The objection to this rule applies to existing language in the rule. 

15A NCAC 2B .0223: DENR/Environmental Management Commission- The Commission objected to this rule due to ambiguity. 
In (a), it is not clear what is meant by "substantially" impair the use of water. The objection to this rule apphes to existing language 
in the rule. 

15A NCAC 2B .0225: DENR/Environmental Management Commission- This is a second version (and a separate filing) of the same 
rule that is in the follow-up matters. The Commission also objected to this version for the same reasons as it objected to the previous 
version, ambiguity (and set out more specifically in the January minutes). The objection apphes to existing language in the mle. 

1 5 A NCAC 1 8D .0203: DENR/Water Treatment Facihty Operators Certification Board - The Commission objected to this rule due 
to ambiguity. The use of "etc." in (b)(1)(C), (b)(3)(A), (b)(8)(C), (b)(9)(D), and (b)(15)(E) makes each of dsse provisions unclear. 
It is not clear what else is meant. This objection applies to existing language in the rule. 

15 A NCAC 18D .0403: DENR/Water Treatment Facility Operators Certification Board- The Commission objected to this rule due 
to lack of statutory authority and ambiguity. The added sentence in (a) is beyond the Board's authority. G.S.90A-25(c) requires the 
Board to issue appropriate certificates to holders of voluntary certificates. There is no provision for a deadhne. In (b), it is not clear 
what standards the Board will use in giving permission to be responsible for more than ten systems. 

17 NCAC 4B .0302: DEPARTMENT OF REVENUE - The Commission objected to this rule due to lack of statutory authority and 
ambiguity. There is no authority for the last smtence in (a), G.S. 1 05-37. l(a)( 1 ) and (2) and 1 05-38. 1 (a) state that the tax is imposed 
when an admission fee is charged. If no admission fee is charged, no tax is imposed. There is no authority for the last sentence in 



1575 NORTH CAROLINA REGISTER March 1,2000 14:17 



RULES REVIEW COMMISSION 



(b). G.S. 105-37. 1(b) and 105-38, 1(a) make the taxes due the 10* day after the end of each month. There is also no authority to 
require something different from temporary amusements. It is also not clear how to distinguish between a temporary and continuing 
amusement. 

17 NCAC 4E .0703: DEPARTMENT OF REVENUE - This rule was withdrawn by the agency. 

19A NCAC 2E .0201: DEPARTMENT OF TRANSPORTATION - This rule was withdrawn by the agency. 

21 NCAC 12 .0202: N C LICENSING BOARD FOR GENERAL CONTRACTORS - The Commission objected to this rule due to 
ambiguity. In (a)(3), it is not clear what is meant by "proper qualification." In (a)(4), it is not clear what standards the Board will 
use in determining that contractor qualifies for the subclassifications. Paragraph (b) implies that there are qualifications for 
classifications other than passing the examinations. It is not clear what they are and they do not appear to be in the statutes or rules. 
This objection applies to existing language in the rule. 

21 NCAC 12 .0204: N C LICENSING BOARD FOR GENERAL CONTRACTORS - This rule was withdrawn by the agency. 

21 NCAC 12 .0209: N C LICENSING BOARD FOR GENERAL CONTRACTORS - The Commission objected to this rule due to 
ambiguity. In (a), it is not clear when it is appropriate for an application to be accompanied by a Certificate of Assumed Name. One 
would presume it is any time one has been filed, but that is not clear from the rule. It is also not clear what documents filed with the 
Secretary of State's office other than Articles of Incorporation and Certificate of Authority are appropriate. 

2 1 NCAC 12 .0402: N C LICENSING BOARD FOR GENERAL CONTRACTORS - The Commission objected to tliis rule due to 
ambiguity and lack of necessity. The last sentence is just information and not a rule and is thus unnecessary. In addition, it is not 
clear what is meant by "other available materials." 

2 1 NCAC 12 .0405: N C LICENSING BOARD FOR GENERAL CONTRACTORS - The Commission objected to this rule due to 
ambiguity. It is not clear what is meant by "appropriate examinations provider." 

21 NCAC 12 .0410: N C LICENSING BOARD FOR GENERAL CONTRACTORS - The Commission objected to this rule due to 
lack of statutory authority. This rule is not consistent with G.S. 87-10(d). If there is a regular meeting of the Board within 30 days 
of the date of the failed examination and the apphcant pays the examination fee, he is entitled to be reexamined. 

21 NCAC 12 .0907: N C LICENSING BOARD FOR GENERAL CONTRACTORS - The Commission objected to this rule due to 
lack of statutory authority. The provision in (d) allowing the Board, in its discretion, to order a continuance amounts to a waiver or 
modification provision without specific guidelines in violarion of G.S. 1 SOB- 19(6). This objection applies to existing language in 
the rule. 

2 1 NCAC 58A .0406: N C REAL ESTATE COMMISSION - Commissioner Sugg recused himself from all of the Real Estate rules. 
The Commission objected to this rule due to ambiguity. In (b) it is unclear what period of time constitutes "immediately following,.." 
Commissioner Twiddy voted not to object to this rule. 

26 NCAC 1 .0103: OFFICE OF ADMINISTRATIVE HEARINGS - This rule was withdrawn by the agency. 

26 NCAC 2C .0108: OFFICE OF ADMINISTRATIVE HEARINGS - This rule was withdrawn by the agency. 

COMMISSION PROCEDURES AND OTHER MATTERS 

Mr DeLuca reported that he had attended a Joint Administrative Procedures Oversight Committee meeting and reported on rules 
and the continuing lawsuit. He also reported that the motion for hearings is scheduled for the week of March 6 CommissionerFutch 
wanted to verify the dates of all meetings in 2000 and was informed that with the exception of April l?", ail meetings would be on 
the third Thursday, 

The next meeting will be on Thursday, March 16, 2000. 

The meeting adjourned at 1 1 :26 a.m. 

Respectfully submitted, 
Sandy Webster 



14:17 NORTH CAROLINA REGISTER March 1,2000 1576 



CONTESTED CASE DECISIONS 



1 his Section contains the full text of some of the more significant Administrative Law Judge decisions along with an index 
to all recent contested cases decisions which are filed under North Carolina's Administrative Procedure Act. Copies of the 
decisions listed in the index and not published are available upon request for a minimal charge by contacting the Office of 
Administrative Hearings, (919) 733-2698. Also, the Contested Case Decisions are available on the Internet at the following 
address: http:\n\'w. state. nc. us OAH/hearings'decision'caseindex. htm. 



OFFICE OF ADMINISTRATIVE HEARINGS 

Chief Administrative Law Judge 

JULIAN MANN, III 

Senior Administrative Law Judge 

FRED G. MORRISON JR. 

ADMINISTRA TIVE LA W JUDGES 



Sammie Chess Jr. 
Beecher R. Gray 
Melissa Owens Lassiter 



Meg Scott Phipps 

Robert Roosevelt Reilly Jr. 

Beryl E, Wade 



AGENCY 

ADMINISTRATION 

Brillhaven, Inc v Department of Administration 

and 
Pnva-Trends, Inc. 
Laidlaw Transit Svcs, Inc. v Katie G Dorsett, SecV/DeptyAdministiation 99 DOA 0102 

OFFICE OF ADMINISTRATIVE HEARINGS 

Ted Murrell, Zam, Inc. v. Office of Adimnistiative Hearings 
Samuel Lee Ferguson v. Office of Adimnistrative Hearings 

AGRICULTURE 

Archie McLean v. Department of Agriculture 

ALCOHOLIC BEVERAGE CONTROL COMMISSION 

Alcoholic Beverage Control Coimnission v. Keyland, Inc . T/A Cloud 9 
Alcoholic Beverage Control Commission v Food Lion, Inc., Store #1351 
Alcoholic Be\ erage Control Commission v Stop 1 , Inc, T/A Stop I Grocery' 
Alcoholic Beverage Control Coimnission v George Steven E\erett 

t/a Casino Snooks Place 
Alcoholic Beverage Control Commission v Beech Mountain Resori, Inc. 
Alcoholic Bev. Control Comm \ Partnership T/A Mermaid Rest. & Lge 
Alcoholic Beverage Control Commission v. Jaeson Nvimg Kim 
Alcoholic Beverage Control Commission v. Lillian Sarah Clary 
Alcoholic Beverage Control Commission v. Circle K Stores, Inc., T/A 

Circle K #83.'i7 
Alcoholic Beverage Control Commission v Vnus Enterpnces, LLC, 

t/a Rendez Vous Club & City of Charlotte 
Alcoholic Beverage Control Commission v Mohammad Salim Pirani 
Alcoholic Beverage Control Commission v Creek Lounge, Inc. t/a 

Creek Lounge 
Delores Ann Holley v Alcoholic Be\ erage Control Commission 
Alcoholic Beverage Control Commission v Partnership T/A 

Corrothers Community Center/Private Club 
Verdict Ridge Country- Club, by H Edward Kno.\ v. Alcoholic 
Beverage Control Commission 

CRIME CONTROL AND PUBLIC SAFETY 

Ray Anthony Breeding \ Cnme Control & Public Safety 
John Ray Webb v Cnme Victims Compensation Commission 
Sarene Franklin HoUoway v Cnme Victims Compensation Comm. 
Vemel Capel Hams v Cnme Victims Compensation Commission 



CASE 




NUMBER 


ALJ 


98 DOA 08 11 


Chess 


99 DOA 0102 


Morrison 


99 OAH 0665 


Chess 


99OAH0718 


Chess 


98 DAG 1770 


Reilly 


98 /SlBC 1099 


Overby 


98 ABC 1270 


Gray 


98 ABC 1337 


Phipps 


98 ABC 1546 


Reilly 


99 ABC 0287 


Reilly 


99 ABC 0367 


Chess 


99 /\BC 0407 


Morrison 


99 ABC 0615 


Phipps 


99 ABC 0656 


Gray 


99 ABC 0684 


Morgan 


99 ABC 0780 


Momson 


99 ABC 0820 


Morgan 


99 kBC 0876 


Gray 


99 ABC 0986 


Lassiter 


99 ABC 1637 


Momson 


93 CPS 0695 


Gray 


95CPS 1353 


Gray 


97 CPS 1172 


Chess 


98 CPS 0328 


Chess 



DATE OF 
DECISION 



06/10/99 



06/1 1/99 



07/14/99 
07/16/99 



07/12/99 



01/17/99 
03/31/99 
09/29/99 
10/19/99 

08/11/99 
09/17/99 
07/09/99 
09/01/99 

1 1/29/99 
10/15/99 

09/21/99 
10/13/99 

08/10/99 
1 1/03/99 

01/07/00 



09/13/99 
09/13/99 
10/12/99 
01/31/00 



PUBLISHED DECISION 
REGISTER CITATION 



14:02 NCR 115 



14:04 NCR 349 



14:04 NCR 347 



14:16 NCR 1489 



7577 



NORTH CAROLINA REGISTER 



March 1, 2000 



14:17 



CONTESTED CASE DECISIONS 



AGENCY 

Paul Richard Mull v Crime Victims Compensation Commission 
Coradene Mayhand v Crime Victims Compensation Commission 
Edna Carr v. Cnme Victims Compensation Commission 
Eric Charles WiUiams v. Crime Control & Public Safety, Div. of 

State Highway Patrol 
Bobby Mills v. Crime Victims Compensation Commission 
William Samuel McCraw v Crime Victims Compensation Commission 
Anson D Looney v Crime Victims Compensation Commission 
Elvin Williams. Jr. v. Crime Victims Compensation Commission 
Michael Anthony Powell v Cnme Victims Compensation Commission 
Mary Elizabeth Peoples Hogan v. Cnme Victims Compensation Comm. 
Louise Dowd v Crime Victims Compensation Commission 
Lemuel Ray Jenkins v. Crime Victims Compensation Commission 
Aimabell B. McCormick v. Cnme Victims Compensation Commission 
Christopher Beasley v. Crime Victims Compensation Commission 
Johnola E. McAllister v. NC Victim and Justice Services 

ENVIRONMENT AND NATURAL RESOURCES 

The Appletree Companies, Inc., Successor to Stewart Products, Inc. 

and Utts Services, Ltd. v. Dept. of Environment & Natural Resources 
R.J. Reynolds Tobacco Co. v. Dept. of Environment & Natural Resources 
T. Famell Shingleton v Environment and Natural Resources 
T. Famell Shingleton v Environment and Natural Resources 
Town of Maysville v. Environment and Natural Resources 
Willie Setzer v. Department of Emironmenl & Natural Resources 
Charles H. Jordan v Brunswick County Health Department 
Jerry Franks and John Schifano, et. al. v. Environment & Natural Resources 

and Wake County Board of Commissioners 
Jerry Franks and John Schifano, et. al. v. Environment & Natural Resources 

and Wake County Board of Commissioners 
James P. and Irene P. Wilson v Cleveland Co. Health & Samtary 
Deep River Citizens' Coalition, American Canoe Assoc., Inc., and Deep 

River Coalition, Inc v Department of Env. & Natural Resources 
Deep River Citizens' Coalition, American Canoe Assoc., Inc., and Deep 

River Coalition, Inc. v. City of Greensboro, Piedmont Tnad Regional 

Water Authority 
Mazzella's Restaurant, Peter D. Mazzella v. Carteret County Env. Health 
Roadway Express v. Department of Environment and Natural Resources 
John W. Venable v. Department of Environment and Natural Resources 
Shell Island Homeowners' Association v. DENR, Div. of Env. Health 
Gail S. Barfield v. Department of Environment and Natural Resources 
Richard E. Day v. Division of Coastal Management 
Ronald L. Walker. Sr, v. Environmental Health Ala County 
Clifford Myers v. Monigomery County Health Department 
Delons B. Wooten v. Pitt County Dept of Environmental Health 
Marissa D. McCain v. Department of Environment and Natural Resources 
Town of Wallace v. Department of Environment and Natural Resources 
William Todd Allison v Department of Environment and Natural 

Resources, Division of Coastal Management 



CASE 




DATE OF 


PUBLISHED DECISION 


NUMBER 


AU 


DECISION 


REGISTER CITATION 


98 CPS 0342 


Chess 


07/26/99 




98 CPS 0398 


Chess 


10/09/99 




98 CPS 0788 


Chess 


10/28/99 




98 CPS 1279 


Chess 


11/01/99 




98 CPS 1412 


Wade 


08/06/99 




98 CPS 1626 


Morrison 


06/09/99 




99 CPS 0096 


Morrison 


05/25/99 




99 CPS 01 18 


Owens 


08/03/99 




99 CPS 0426 


ReiUy 


08/03/99 




99 CPS 0504 


Reilly 


07/29/99 




99 CPS 0519 


Momson 


12/07/99 




99 CPS 0521 


Gray 


09/08/99 




99 CPS 0564 


Phipps 


08/04/99 




99 CPS 0843 


Chess 


11/23/99 




99 CPA 1060 


Gray 


12/29/99 




97 EHR 0795 


I^ssiter 


11/19/99 




98EHRI3I5 


Wade 


06/04/99 


14:02 NCR 1 10 


98 EHR 1600 


Reilly 


10/08/99 


14:11 NCR 926 


98 EHR 1601 


Reilly 


10/08/99 




99 EHR 0069 


Owens 


09/27/99 




99 EHR 0166 


Chess 


06/28/99 




99 EHR 0201 


Morrison 


06/28/99 




99 EHR 0344' 


Phipps 


09/28/99 




99 EHR 0380' 


Phipps 


09/28/99 




99 EHR 0506 


Lassiter 


10/07/99 




99 EHR 0560" 


Reilly 


11/01/99 




99 EHR 0613" 


Reilly 


11/01/99 




99 EHR 0692 


Reilly 


08/19/99 




99 EHR 0745 


Morrison 


07/27/99 




99 EHR 0773 


Wade 


10/13/99 




99 EHR 0814 


Owens 


08/18/99 




99 EHR 0840 


Momson 


11/19/99 




99 EHR 092 1 


Wade 


11/02/99 




99 EHR 1076 


Momson 


10/18/99 




99 EHR 1 106 


Mann 


1 1/03/99 




99 EHR 1 131 


Wade 


11/19/99 




99 EHR 1245 


Lassiter 


01/04/00 




99 EHR 1194 


Chess 


12/06/99 




99 EHR 1612 


Chess 


01/10/00 





Division of Air Quality 

Neighbors Against The Cullasaja Asphalt Plant & Blue Ridge Env. 
Defense League, Inc. v. Dept of Env & Natural Resources and Rhodes 
Brothers Paving, Inc. and Carolina Asphalt Pavement Association 

Neighbors Against The Cullasaja Asphalt Plant & Blue Ridge Env. 
Defense League. Inc v. Dept of Env & Natural Resources and Rhodes 
Brothers Paving. Inc. and Carolina Asphalt Pavement Association 

Terrance W. Bache. Pres.. Terhane Group, Inc. v. DENR, Div/ Air Quality 

Foothills Action Comm. For The Environment and The Blue Ridge 
Environmental Defense League, Inc v DENR, Div of Air Quality & 
D&S Asphalt Matenals and Carolina Asphalt Pavement Assoc. 

XVIII Airborne Corps & Fort Bragg. Dept. of the Army. USA v. 
Environment and Natural Resources. Div of Air Quality 

J.D. Owen v Environment and Natural Resources. Div of Air Quality 

Environmental Management 

Allen Ravnor v. Environmental Management Commission 

Division of Land Resources 

Buel B Barker. Ji and Hubbard Realty of Winston-Salem, a NC Corp , 

jointly and severally v. DENR, Div. of Land Resources 
T.B. Powell, Inc. v DENR, Division of l,and Resources 
Ronald G Smith v. DENR, Division of Land Resources 



98 EHR 1735 


Gray 


98 EHR 1735'= 


Gray 


98 EHR 1790 


Marm 


99 EHR 0157" 


Gray 


99 EHR 0283 


Wade 


99 EHR 0642 


Mann 


99 EHR 0127 


Gray 


98 EHR 1457 


Morrison 


99 EHR 0632 


Wade 


99 EHR 0799 


Momson 



09/30/99 



12/06/99 



06/23/99 
12/06/99 



08/1 1/99 
08/10/99 

07/27/99 

06/09/99 

10/04/99 
10/29/99 



14: 10 NCR 900 



14:17 



NORTH CAROLINA REGISTER 



March 1, 2000 



1578 



CONTESTED CASE DECISIONS 



AGENCY 

Division of Marine Fisheries 

Alton Chadwick v Division of Marine Fisheries 

Division of Water Quality 

York Oil Company \ DENR, Division of Water Quality 
J Todd Yates and Teresa B Yates v DENR, Div of Water Quality 
NO. Purvis Farms, Inc. v DENR, Division of Water Quality 
Dallas Hams Real Estate Construction, Inc , v Dept of Environment 
and Natural Resources, Division of Water Quality 

Soil and Water Conservation Commission 

Neuse River Foundation, Neuse Riverkeeper, and Alliance For A 

Responsible Svvine Industry, Inc. v. NC Soil & Water 

Conservation Commission 



CASE 
NUMBER 



99 EHR 0553 



99 EHR 1660 



ALT 



Reilly 



97 EHR 1026 Phipps 

98 EHR 1456 Wade 

99 EHR 0696 Chess 
99 EHR 0770 Lassiter 



Momson 



DATE OF 


PUBLISHED DECISION 


DECISION 


REGISTER CITATION 


08/19/99 




07/26/99 


14:04 NCR 343 


06/22/99 




08/27/99 




01/31/00 


14: 17 NCR 1586 



12/10/99 



14:14 NCR 1334 



BOARD OF GEOLOGISTS 

Andrevi- M. Raring, PhD v Board for the Licensing of Geologists 

HEALTH AND HUMAN SERVICES 

Eardley "JR" Stephens v St Bd of Nurse's Aides and Practitioners 

Ernest Clyde Absher and Dianna B Absher v Health & Human Resources 

Vickie Jean Epps v Department of Health & Human Services 

Andrew Gainey v. Office of the Chief Medical Examiner 

J. P. Lynch v. Department of Health & Human Services 

Paul Walker, Thomas Walker & Mary Walker v. Mecklenburg Area 

Mental Health 
New Hope Living Centers, Enc D. Lewis v. Health & Human Services 
Frank McKoy v. Department of Health & Human Services 
Joan Marie McDanicl v Department of Health & Human Services 
Lormie Hemng \ Department of Health & Human Services 
Robert H. Riley v. Office of the Governor, Office of Citizen Services 
Betty C Patterson v Department of Health & Human Services 
Ravner Super Mkt., J K. Rayner, Jr. v Department of Health and 

Human Services 
Monica Denise Dayson v Department of Health & Human Sen ices 

Division of Child Development 

Shaw Speaks Child Dev. Clr. v. Health & Human Svcs., Child Dev. 
Lachelle L. Parsons v. Health & Human Svcs, Div. of Child Dev. 
In The Beginning, Inc v Health & Human Svcs . Div of Child Dev. 
Bamnger Center for Child Development. Elon Home for Children, 

Inc. , Rev . Dr Fredenck G Grosse v. Health & Human Services. 

Div of Child Development 
Dulatown Outreach Center, Inc v Health & Human Svcs , Child Dev 
Michele Denoffv Health & Human Services, Div of Child Dev 
MLCM, Inc , Man C. McGovem v. DHHS, Di\ of Child Dev 
Small World Daycare II. Trena S. McDamel v Health & Human Svcs , 
Div of Child Dev 



99 BOG 01 50 


Mann 


98DHR0I55 


Phipps 


98 DHR 1622 


Reillv 


98DHRI725 


Gray 


98 DHR 1761 


Owens 


99 DHR 01 11 


Reilly 


99 DHR 01 55 


Momson 


99 DHR 0170 


Owens 


99 DHR 0226 


Wade 


99 DHR 0305 


Reilly 


99 DHR 0350 


Reilly 


99 DHR 0356 


Wade 


99 DHR 0954 


Reillv 


99 DHR 0961 


Momson 



99 DHR I04I 



Reilly 



06/16/99 



08/25/99 
06/17/99 
02/03/00 
05/12/99 
05/25/99 
08/19/99 

05/25/99 
07/06/99 
08/05/99 
06/03/99 
07/21/99 
1 1/05/99 
11/15/99 

09/29/99 



99 DHR 0042 


Gray 


07/22/99 


99 DHR 0445 


ReiUy 


07/19/99 


99 DHR 0575 


Mann 


07/19/99 


99 DHR 062 1 


Gray 


12/15/99 


99 DHR 0688 


Owens 


07/21/99 


99 DHR 0695 


Owens 


08/05/99 


99 DHR 1032 


Wade 


11/19/99 


99 DHR 1038 


Lassiter 


10/06/99 



14:01 NCR 69 



Division of Facility Services 

Kelly M. Poole v Health & Human Senices. Div. of Facility Services 
Norma Faye Lewis v. Health & Human Svcs.. Div . of Facility Services 
Delia C. Jones v. Health & Human Services, Div. of Facility Services 
Heather Alane Scott \ Health & Human Svcs Div of Facility Services 
Effie Ruth Smith v. Health & Human Svcs., Div. of Facility Services 
Vivienne Gelona Marshall v DHHS, Div of Facility Services 
Sarah L. Mathis v. DHHS, Div of Facility Services 
Doris Laviner Moser v. Health & Human Services, Div. of Facility Svcs. 
Norma Faye Lewis v. Health & Human Svcs., Div. of Facility Services 
Carolyn Grant v Health & Human Services, Div. of Facility Services 
Marion Moser Thompson v Health & Human Svcs , Facility Services 
Rose Mane Hadley v. Health & Human Svcs., Div of Facility Services 
Sarah Frances Alford v. Health & Human Svcs., Div. of Facility Svcs. 
Alvin L. Phynon Jr v Health & Human Svcs.. Dept of Facility 
Cabarrus Memonal Hospital d/b/a Northeast Medical Center 

V. DHHS. Div of Facility Services. Certificate of Need Section & 

Cabarrus Diagnostic Imaging, Inc 
Cabarrus Diagnostic Imaging. Inc. v. DHHS. Div of Facility Services, 

Certificate of Need Section & Cabarrus Memonal Hospital, d/b/a 



97 DHR 0629 


Chess 


06/14/99 


98 DHR 1274"' 


Phipps 


07/02/99 


98 DHR 1680 


Gray 


06/09/99 


98 DHR 1671 


Gray 


10/08/99 


98 DHR 1774 


Chess 


07/14/99 


98 DHR 1786 


Phipps 


09/02/99 


99 DHR 0032 


Momson 


09/24/99 


99 DHR 0074 


Wade 


08/06/99 


99 DHR 0144*' 


Phipps 


07/02/99 


99 DHR 0145 


Mann 


06/11/99 


99 DHR 02 16 


Gray 


08/13/99 


99 DHR 02 18 


Wade 


08/06/99 


99 DHR 0220 


Phipps 


06/08/99 


99 DHR 0230 


Mann 


07/07/99 


99 DHR 0392 


Gray 


11/18/99 


99 DHR 0396 


Gray 


12/20/99 



Consolidated Cases. 



1579 



NORTH CAROLINA REGISTER 



March 1, 2000 



14:17 



CONTESTED CASE DECISIONS 



AGENCY 

Northeast Medical Center 
Baibaia Rhue v. D F S 
BartKua Rhue v. D F S 

Michelle Johnson v. DHHS, Division of Facility Services 
Esther Nieves v. Health & Human Services, Div. of Facility Services 
Shirley Ann Beck v. Division of Facility Services 

Division of Medical Assistance 

Interim HealthCare - Morris Group, Inc., Lisa B Morris, RN, BSN v. 

DHHS, Division of Medical Assistance 
Companion Health Care, Inc. v. Div. of Medical Assistance, DHR 



Division of Mental Health, Developmental Disabilities and Substance Abuse Services 

S.S. by her parents and next friends, D.S. & A.S. v, DMH/DD'SAS 
Theresa Mabry in behalf of Aaron Mabry, a minor child v DHHS, 
Div. of MH/DD/SAS, Willie M. SecUon 



CASE 




DATE OF 


PUBLISHED DECISION 


NUMBER 


ALJ 


DECISION 


REGISTER CITATION 


99 DHR 0401*' 


Wade 


07/30/99 




99 DHR 0414*' 


Wade 


07/30/99 




99 DHR 0546 


Gray 


10/12/99 




99 DHR 0766 


Phipps 


07/21/99 




99 DHR 0942 


Mann 


09/24/99 




99 DHR 0552 


Maim 


09/01/99 




99 DHR 0762 


Owens 


07/29/99 




» Services 








99 DHR 0538 


Gray 


08/02/99 




99 DHR 1132 


Grav 


12/20/99 





Division of Vocational Rehabilitation 

Dr. H. Michael Poole v. DHHS, Div of Vocational Rehabilitation 

Division of Social Services 

Robert H. Riley v. Iredell County DSS 

Robert H. Riley v. Health & Human Svcs., Div. of Social Services 

Joanna Price v. Caldwell County Social Services 

April De'Shelle Turner v. DHHS, Div. of Social Service. 

Program Integnty Branch 
Betty S. Lewis V. DHHS, Div. of Social Services, Program Integrity 

Branch 

Veronica Owens v. Dept of Social Services Union County 

Chilli Support Enforcement Section 
Grady J. Griffith v. Department of Human Resources 
Lindy Teachout v. Department of Health & Human Services 
Thomas Ashley Stewart II v Department of Health & Human Services 
June V Pettus v. Department of Human Resources 
Floyd W. Hubbard v Department of Human Resources 
Richard Arnold Collins v Jones County DSS 
David S. Blackwelder v. Department of Human Resources 
June V Pettus v. Department of Human Resources 
Grady J. Griffith v. Department of Human Resources 
John T. Raynor v. Department of Human Resources 
Kenneth Wayne Adair v Department of Human Resources 
Randy Snead v. Department of Human Resources 
Shawn E. Williams v. Department of Human Resources 
Huri G, Stokes v. Department of Health & Human Services 
Ronald E. Sanders v. Department of Human Resources 
Willie D. Davis v Department of Human Resources 
G.S. Hall V. Department of Health & Human Services 
Charles Stewart v. Department of Human Resources 
Sidney T. Dimn v Department of Human Resources 
Kenneth A. McCrorie v. Department of Huinan Resources 
Daniel R- Klock v. Department of Human Resources 
David M. VanDyke v. Department of Human Resources 
Jerome Maddox v. Department of Health & Human Services 
Samuel L Gordon v. Department of Health & Human Services 
Sam Anderson v Department of Human Resources 
Donald Edward Law 11 v Department of Human Resources 
Sechia Lee Corbett v Department of Human Resources 
Robert T. Ausband v Department of Human Resources 
Shawn E Williams v Department of Human Resources 
Derrick Dobbins v Department of Health & Human Services 
Antonio Melendez v Department of Health & Hiunan Services 
Wilham W. Heck v Department of Human Resources 
Matthew S, Conklin v Department of Health & Human Serv ices 
Rickey Lightner v Department of Human Resources 
Matthew S. Conklin v. Department of Health & Human Services 
Robert M Chandler Jr. v Department of Health & Human Services 
Jermaine L. Covington v Department of Health & Human Services 
Mitchell Moses, Jr v. Department of Health & Human Services 
Grady L. Chosewood v. Department of Health & Human Services 
Fulton Allen Tillman v. Department of Health & Human Services 
Nathaniel Alston v. Department of Health & Human Services 
Bret Burtrum v Department of Health & Human Services 



99 DHR 1495 


Gray 


01/04/00 


99 DHR 0354 


Wade 


07/21/99 


99 DHR 0355 


Wade 


07/21/99 


99 DHR 0520 


Morrison 


06/10/99 


99 DHR 0927 


Gray 


10/21/99 


99 DHR 0950 


Gray 


12/20/99 


99 MIS 0677 


Mann 


08/17/99 


97 CRA 1570 


Maim 


10/26/99 


98 CRA 0727 


Reilly 


06/24/99 


99 CRA 0628 


Reilly 


06/14/99 


96CSE 1721*' 


Mann 


09/17/99 


96CSE1725 


Reillv 


09/02/99 


96CSE 1810 


Reilly 


06/28/99 


97 CSE 0416 


Morrison 


08/24/99 


97 CSE 0867** 


Mann 


09/17/99 


97 CSE 1569 


Mann 


10/26/99 


98 CSE 0054 


Gray 


10/21/99 


98 CSE 0229 


Mom son 


06/30/99 


98 CSE 0544 


Gray 


10/21/99 


98 CSE 0845 


Phipps 


09/21/99 


98 CSE 0898 


Gray 


07/23/99 


98 CSE 1182 


Mann 


10/26/99 


98 CSE 1387 


Mann 


09/17/99 


98 CSE 1392 


Reilly 


06/24/99 


98 CSE 1419 


Mann 


09/17/99 


98 CSE 1428 


Reilly 


01/11/00 


98 CSE 1435 


Gray 


08/04/99 


98 CSE 1440 


Momson 


10/20/99 


98 CSE 1549 


Mann 


09/17/99 


98 CSE 1562 


Mann 


09/17/99 


98 CSE 1563 


Chess 


01/04/00 


98 CSE 1585 


Mann 


09/17/99 


98 CSE 1586 


Morrison 


06/25/99 


98 CSE 1588 


Phipps 


09/21/99 


98 CSE 1612 


Maim 


1 1/02/99 


98 CSE 1613 


Phipps 


09/21/99 


98 CSE 1616 


Lassiter 


01/21/00 


98 CSE 1635 


Chess 


09/30/99 


98 CSE 1638 


Mann 


09/17/99 


98 CSE 1702" 


Lassiter 


01/12/00 


98 CSE 1717 


Reilly 


1 1/02/99 


98 CSE 1785" 


Lassiter 


01/12/00 


98 CSE 1789 


Phipps 


05/27/99 


99 CSE 0209 


Lassiter 


11/18/99 


99 CSE 0217 


Wade 


1 1/30/99 


99 CSE 0301 


Mann 


07/01/99 


99 CSE 03 11 


Reilly 


06/30/99 


99 CSE 0317 


Mann 


07/01/99 


99 CSE 0318 


Wade 


07/14/99 



14:17 



NORTH CAROLINA REGISTER 



March 1, 2000 



1580 



CONTESTED CASE DECISIONS 



AGENCY 

Cedric A. Hurst v. Department of Human Resources 
Dane Wesle>' Ware v. Department of Health & Human Senices 
Paul H. Padnck v. Department of Health & Human Services 
Oscar William Willoughby Sr v. Dept. of Health & Human Services 
Kelvin E Townsend v. Department of Health & Human Services 
Billy J. Young v. Department of Health & Human Services 
Rodney Eugene Caldwell v. Department of Health & Human Services 
Adelheide J. Cooper v. Department of Health & Human Services 
Beverly K. Thompson v. Department of Health & Human Services 
Michael L- Timmer v. Department of Health & Human Services 
Elizabeth F. West v. Department of Health & Human Services 
Troy Gibson v. Department of Health & Human Services 
Roy D. Washington v. Department of Health & Human Services 
Everett A, Mitchell v. Department of Health & Human Services 
Corey Antoine Johnson v. Department of Health & Human Services 
Holland E. Harold v. Department of Health & Human Services 
Larry Lowell Dixon v. Department of Health & Human Services 
Calvin D. Alston v. Department of Health & Human Services 
Marquel Simmons v. Department of Health & Human Services 
Anthony Vincente Batusta v. Department of Health & Human Services 
Gerald Scott Saucier v. Department of Health & Human Services 
Lawrence Gordon Soles v. Department of Health & Human Services 
Mohamed Moustafa v Department of Health & Human Services 
Damion C. Graham v. Department of Health & Human Services 
Vicky L. Day v. Department of Health & Human Services 
Mattliew Conklin v. Department of Health & Human Services 
Charlie James White v. Department of Health & Human Services 
Benme l^mar Kmghten v. Department of Health & Human Services 
Larie Bolton v. Department of Health & Human Services 
Randy Lewis Bryant v. Department of Health & Human Services 
Earl C. Jones, Sr. v. Department of Health & Human Services 
Joseph F. Donaldson, 111 v. Department of Health & Human Services 
Naion V- Pnde v. Department of Health & Human Services 
Claude W. Jordan v. Department of Health & Human Services 
Henry Roosevelt Mercer v. Department of Health & Human Services 
Bobby Gene Owens v. Department of Health & Human Services 
Thomas L. Vaughn v Department of Health & Human Services 
Robert F. Skipper v. Department of Health & Human Services 
Gerald W, Lavvson v. Department of Health & Human Services 
David S. Yusko v. Department of Health & Human Services 
Debbie Galmon Moore v- Department of Health & Human Services 
Kenneth Dana Kirk v. Department of Health & Human Services 
Gill T. Snuth V Department of Health & Human Services 
Clarence Earl Burden v. Department of Health & Human Services 
Gary Willis v. Department of Health & Human Services 
Phillip Drve v. Department of Health & Human Services 
William Kizzie v. Department of Health & Human Services 
June S- Shepherd v. Department of Health & Human Services 
James Homoki v Department of Health & Human Services 
Frank Edward Crane v. Haywood Co. Dept. of Social Services 
Michael Bryant v. Department of Health & Human Services 
John Awimionye v. Department of Health & Human Services 
Richard A. McKeller v. Department of Health & Human Services 
Sharon Tucker v. Department of Health & Human Services 
Darryi A. Bonner, Sr., v Department of Health & Human Services 
Louella R Smder v Department of Health & Human Services 
Raymond Ortiz v Department of Health & Human Services 
Eddie Southards v. Department of Health & Human Services 
Adelheide Cooper v. Department of Health & Human Services 
Elliot G. Skillem v. Department of Health & Human Services 
John Ciccarelli v. Department of Health & Human Serv ices 
Eugene R. Hoover v. Department of Health & Human Services 
David Black v. Department of Health & Human Services 
David Black v. Department of Health & Human Services 
Malcolm S. Mungo v . Departinent of Health & Human Senices 
Phillip W. Wyman. Jr. v. Department of Health & Human Services 
Reginald B. Bratton v. Department of Health & Human Services 
John J. Lowman v. Department of Health & Human Services 
George T. Crudup v. Department of Health & Human Services 
Hasan A. Rahman v Department of Health & Human Services 
Warren Love. Jr. v Department of Health & Human Services 
William Kizzie v Department of Health & Human Services 
King O. Williams v. Department of Health & Human Services 



CASE 




DATE OF 


PUBLISHED DECISION 


PrtlMBER 


AU 


DECISION 


REGISTER CITATION 


99 CSE 0330 


Chess 


08/10/99 




99 CSE 0359 


Gray 


06/28/99 




99 CSE 0370 


Maim 


1 1/02/99 




99 CSE 0371 


Momson 


06/28/99 




99 CSE 0373 


Phipps 


07/12/99 




99 CSE 0374 


Reilly 


06/14/99 




99 CSE 0427 


I^ssiter 


10/20/99 




99 CSE 0428 


Phipps 


07/19/99 




99 CSE 0435 


Reilly 


06/14/99 




99 CSE 0437 


Wade 


06/08/99 




99 CSE 0451 


Morrison 


05/25/99 




99 CSE 0462 


Owens 


07/19/99 




99 CSE 0481 


Reilly 


06/25/99 




99 CSE 0483 


Chess 


10/05/99 




99 CSE 0486 


Gray 


09/13/99 




99 CSE 0509 


Maim 


1 1/02/99 




99 CSE 0518 


Morrison 


08/24/99 




99 CSE 0539 


Owens 


08/10/99 




99 CSE 0547 


Wade 


08/06/99 




99 CSE 0551 


Chess 


08/31/99 




99 CSE 0576 


Mann 


06/09/99 




99 CSE 0581 


Momson 


06/09/99 




99 CSE 0582 


Owens 


08/05/99 




99 CSE 0635 


Wade 


12/06/99 




99 CSE 0679 


Gray 


09/27/99 




99 CSE 0689 


Mann 


09/17/99 




99 CSE 0690 


Morrison 


07/20/99 




99 CSE 0702 


Owens 


09/20/99 




99 CSE 0735 


Phipps 


08/06/99 




99 CSE 0737 


Reilly 


09/20/99 




99 CSE 0801 


Gray 


08/10/99 




99 CSE 0802 


Mann 


1 1/02/99 




99 CSE 0825 


Phipps 


08/20/99 




99 CSE 0831 


Reilly 


10/11/99 




99 CSE 0841 


Wade 


10/20/99 




99 CSE 0877 


Gray 


10/11/99 




99 CSE 0883 


Mann 


1 1/08/99 




99 CSE 0899 


Morrison 


10/20/99 




99 CSE 0909 


Lassiter 


11/16/99 




99 CSE 0953 


Chess 


12/13/99 




99 CSE 0957 


Gray 


10/18/99 




99 CSE 0972 


Mann 


10/26/99 




99 CSE 1015 


Wade 


11/30/99 




99 CSE 1037 


Chess 


11/18/99 




99 CSE 1040 


Gray 


12/02/99 




99 CSE 1043 


Maim 


12/14/99 




99 CSE 1049 


Morrison 


12/01/99 




99 CSE 1074 


Lassiter 


12/09/99 




99 CSE 1141 


Lassiter 


01/05/00 




99 CSE 1168 


Wade 


01/04/00 




99 CSE 1235 


Gray 


11/17/99 




99 CSE 1258 


Mann 


01/12/00 




99 CSE 1264 


Lassiter 


01/21/00 




99 CSE 1283 


Reilly 


1 1/30/99 




99 CSE 1284 


Wade 


02/03/00 




99 CSE 1286 


Gray 


02/08/00 




99 CSE 1287 


Mann 


01/12/00 




99 CSE 1288 


Momson 


1 1/30/99 




99 CSE 1310 


Lassiter 


12/23/99 




99 CSE 1313 


Reilly 


01/24/00 




99 CSE 1324 


Wade 


12/15/99 




99 CSE 1333 


Morrison 


12/20/99 




99 CSE 1334 


Reilly 


12/17/99 




99 CSE 1338 


Reilly 


12/17/99 




99 CSE 1345 


Lassiter 


12/23/99 




99 CSE 1354 


Mann 


02/08/00 




99 CSE 1368 


Momson 


02/08/00 




99 CSE 1374 


Mann 


02/08/00 




99 CSE 1375 


Reilly 


01/05/00 




99 CSE 1378 


Gray 


12/20/99 




99 CSE 1385 


Morrison 


02/08/00 




99 CSE 1409 


Chess 


02/04/00 




99 CSE 1412 


Mann 


12/20/99 





1581 



NORTH CAROLINA REGISTER 



March 1, 2000 



14:17 



CONTESTED CASE DECISIONS 



AGENCY 

Michael J. Artis V. Department of Health & Human Services 
Keith L. Epps v Department of Health & Human Services 
Randolph C. Pitcock v. Department of Health & Human Services 
Nelson B Chambers v Department of Health & Human Services 
William Wilcox v Department of Health & Human Services 
Bobby L. Bell v Department of Health & Human Services 
Everton Walker v Department of Health & Human Services 
Charles Bradley v Department of Health & Human Services 
Robert T Ausband v Department of Health & Human Services 
Willie J. Gadson v Department of Health & Human Services 
Michael David Janis v Department of Health & Human Services 
Dawiid S Shabazz v Department of Health & Human Services 
Karlos M. Gregory v Department of Health & Human Services 
George L Cherry v Department of Health & Human Services 
Thomas A. Stewart, II v Department of Health & Human Services 
Donald D. Birkhofer v Department of Health & Human Services 
Vashon Kearney v. Department of Health & Human Services 
Donald S. Dorest v. Department of Health & Human Services 
Randy Russotti v. Department of Health & Human Services 
Willie J. Curry v. Department of Health & Human Services 

Munel Thomas v DHR, Div of Social Services 
Kathryn P Fagan v. Department of Health & Human Services 
Tresha W. Robinson v. Department of Health & Human Services 
Robert Dwayne Kennedy v Department of Health & Human Services 
Deborah Seegars v. Department of Health & Human Services 
Lillian Anne Darroch v. Department of Health & Human Services 
Evel>n C Pratt v Department of Health & Human Services 
Jacqueline D. Caldwell v Department of Health & Human Services 



CASE 




DATE OF 


PUBLISHED DECISION 


NUMBER 


AU 


DECISION 


REGISTER CITATION 


99CSE14I9 


Morrison 


12/13/99 




99 CSE 1426 


Wade 


01/06/00 




99 CSE 1429 


Mann 


01/21/00 




99 CSE 1437 


Mann 


01/04/00 




99 CSE 1440 


Reilly 


01/04/00 




99 CSE 1468 


Gray 


02/04/00 




99 CSE 1476 


Lassiter 


01/11/00 




99 CSE 1477 


Mann 


01/12/00 




99 CSE 1492 


Mann 


01/21/00 




99 CSE 1498 


Reilly 


01/04/00 




99 CSE 1503 


Morrison 


02/04/00 




99 CSE 1509 


Wade 


02/03/00 




99 CSE 1535 


Lassiter 


01/1 1/00 




99 CSE 1546 


Reilly 


02/01/00 




99 CSE 1569 


Reilly 


01/11/00 




99 CSE 1570 


Wade 


01/07/00 




99 CSE 1576 


Gray 


02/08/00 




99 CSE 1588 


Lassiter 


01/05/00 




99 CSE 1606 


Gray 


02/08/00 




99 CSE 1623 


Lassiter 


01/05/00 




98 DCS 0631 


Wade 


12/15/99 




98 DCS 1769 


Morrison 


06/25/99 




99 DCS 0480 


Gray 


10/18/99 




99 DCS 0482 


Wade 


09/10/99 




99 DCS 0505 


Pliipps 


06/30/99 




99 DCS 0555 


Gray 


07/06/99 




99 DCS 0813 


Owens 


08/25/99 




99 DCS 0974 


Momson 


09/20/99 





JUSTICE 

Alarm Systems Licensing Board 
Terry Allen Bnckey v Alarm Systems Licensing Board 
Travis Eric Reardon v Alarm Systems Licensing Board 
Bnan Anthony Bartimac v. Alarm Systems Licensing Board 
Paul Luke Walczak v. Alarm Systems Licensing Board 
Melvin T. Lohr v. Alarm Systems Licensing Board 
Bradford D. Penny v. Alarm Systems Licensing Board 
Benny L. Shaw v Alarm Systems Licensing Board 
Tracey Larue Santana v Alarm Systems Licensing Board 
Donald Eugene Boger v Alarm Systems Licensing Board 
Kajur Washburn v. Alarm Systems Licensing Board 
Timothy Chezere Sifford v Alarm Systems Licensing Board 
Howard Douglas Self v Alarm Systems Licensing Board 
Edward W Hester v Alarm Systems Licensing Board 
Steven Craig Hollovvay v Alarm Systems Licensing Board 
Richard C Young v Alarm Systems Licensing Board 
Roger Bennett, Jr. v Alarm Systems Licensing Board 

Education and Training Standards Division 

Rock Steven Edwards v. Cnminal Justice Ed & Training Stds. Comm. 
Anthony Scott Hughes v Sheriffs' Ed. & Training Standards Comm. 
Hal Pilgreen v. Cnminal Justice Ed. & Training Stds Comm. 
Emma J. Kiser v. Sheriffs' Ed. & Traimng Standards Comm. 
Keith Allen Norris v. Sheriffs' Ed & Training Standards Comm. 
Sheny Davis Kenney v. Criminal Justice Ed. & Training Stds Comm. 
Brian G Mead v. Criminal Justice Education & Training Stds Comm. 
Steven Randolph Russell v Criminal Justice Ed & Training Stds Comm. 
Russell Ixe Yelverton v. Criminal Justice Ed & Training Stds Comm. 
James Manon Massey v. Criminal Justice Ed &. Training Stds. Comm. 
Mark E. Narron v. Sheriffs' Ed. & Traimng Stds Commission 
Shean E. Taylor v. Sheriffs' Ed. & Traimng Stds Commission 
Dennis L Ramsingh v Sheriffs' Ed. & Training Stds Commission 
Sandra G. Armstrong v Sheriffs' Ed. & Training Standards Comm. 
Edward L Lusk v Shenffs' Ed. & Traimng Standards Comm 
Tonnette Bemburv v Sheriffs' Ed. & Traimng Standards Comm. 
Terry Leon Jones v Criminal Justice Education & Training Stds Comm. 
Brenda J Hines v Sheriffs' Education *. Training Stds Comm 
George Hoke Powell, Jr. v Criminal Justice Ed & Traimng Stds Comm. 
Marcus Anthony Di.\on v Shenifs' Education & Training Stds Comm. 

Private Protective Services Board 

Tn-Citv Securities and James G Hutcherson v Private Protective Svcs. Bd. 

Tri-City Securities and James G Hutcherson v Pnvate Protective Svcs. Bd. 



99 DOJ 0097 


Wade 


05/21/99 




99 DOJ 0446 


Phipps 


07/28/99 




99 DOJ 0487 


Morrison 


05/25/99 




99 DOJ 0489 


Owens 


08/03/99 




99 DOJ 0490 


Morrison 


05/24/99 




99 DOJ 0522 


Momson 


06/08/99 




99 DOJ 0523 


Morrison 


06/08/99 




99 DOJ 0524 


Phipps 


09/24/99 




99 DOJ 0715 


Owens 


07/29/99 




99 DOJ 0716 


Owens 


07/29/99 




99 DOJ 1022 


Momson 


09/24/99 




99 DOJ 1230 


Reilly 


10/27/99 




99 DOJ 1295 


Momson 


12/03/99 




99 DOJ 1299 


Momson 


12/07/99 




99 DOJ 1304 


Morrison 


12/03/99 




99 DOJ 1466 


Wade 


01/07/00 




98 DOJ 0906 


Chess 


05/13/99 




98 DOJ 1530 


Chess 


05/12/99 




98 DOJ 1775 


Chess 


06/09/99 




98 DOJ 1793 


Gray 


06/07/99 




99 DOJ 0045 


Mann 


07/29/99 


14:04 NCR 351 


99 DOJ 0067 


Wade 


06/08/99 




99 DOJ 0106 


Gray 


10/07/99 




99 DOJ 0123 


Owens 


10/29/99 


14:11 NCR 928 


99 DOJ 0131 


Phipps 


08/11/99 




99 DOJ 0168 


Reilly 


10/1 1/99 




99 DOJ 0453 


Momson 


09/08/99 


14:07 NCR 568 


99 DOJ 0790 


ReiUy 


09/29/99 




99 DOJ 0796 


Gray 


1 1/04/99 




99 DOJ 0844 


Mann 


09/24/99 




99 DOJ 0846 


Phipps 


09/29/99 




99 DOJ 0934 


Reilly 


09/29/99 




99 DOJ 1054 


Wade 


10/21/99 




99 DOJ 1138 


Wade 


10/14/99 




99 DOJ 1363 


Chess 


12/08/99 




99 DOJ 1527 


Chess 


01/21/00 




98 DOJ 1749*' 


Phipps 


09/02/99 




98 DOJ 1752*' 


Phipps 


09/02/99 





14:17 



NORTH CAROLINA REGISTER 



March 1, 2000 



1582 



CONTESTED CASE DECISIONS 



AGENCY 

Ordie Hazu McFarland v Pnvate Protective Services Board 
Thomas E. Mewborn v, Pnvate Protective Services Board 
Michael Lynn Arter v. Private Protective Services Board 
Jeffrey S. Moore v. Private Protective Services Board 
Bonnie Mane Keller v. Private Protective Services Board 
Shawn E. Alexander v. Pnvate Protective Services Board 
Ronald E. Sulloway v Pnvate Protective Services Board 
Raymond Solomon v. Pnvate Protective Services Board 
Charles E. Evans, Jr. v Pnvate Protective Services Board 
LawTcnce Martin v. Pnvate Protective Services Board 
William E. Ellis, Sr. v Pnvate Protective Services Board 
Bobby James Nicholson v Pnvate Protective Services Board 
Murray J. Degnan v. Pnvate Protective Services Board 
James Lee Moms v, Pnvate Protective Services Board 
Thomas William Atchison v. Pnvate Protective Services Board 
Mark Lav em Hevvitt \ Private Protective Services Board 
Robert Steven Pekel v, Pnvate Protective Services Board 
Peggy Ann Galespie v, Pnvate Protective Services Board 
Michael Jaye Kom v. Pnvate Protective Services Board 
Jacqueline Renee Hayvvood v. Pnvate Protective Serv ices Board 
Isaiah Komegay, Jr. v, Pnvate Protective Services Board 
Wayne Orlando Miller v , Pnvate Protective Services Board 
Richard Asiedu v , Private Protective Services Board 
David Gregorv' Mims v. Private Protective Services Board 
Garland D. Melvm v. Private Protective Services Board 
Jerron Devoa Caldwell v. Pnvate Protective Services Board 
Theodore Little v- Pnvate Protective Serv ices Board 
Dennis L. Young v. Private Protective Services Board 
Jose V. Vargas v. Pnvate Protective Services Board 
Gwendolvn L. Gray v. Pnvate Protective Serv ices Board 
Allen D. Edenbum v. Private Protective Services Board 
Chris George McCracken v Pnvate Protective Services Board 

PUBLIC INSTRUCTION 

Martin Wayne Fletcher v, St. Bd. of Educ, Dept of Public Instruction 
S.H. by and through her guardian and custodian, HH, and H.H v. 

Henderson County Board of Education 
Paula Momll, indiv iduaJly/on behalf of John Morrill v. Wake Cty, Schools 
S.LF- and S.F.F, v, Charlotte-Mecklenburg Board of Education 
Marshall Scott Brannan v Department of Public Instruction 
Matthew Weber, and his father and next friend. Bnan Weber, and Brian 

Weber v, Wilkes County Schools 
Michael Mathison v. Charlotte-Mecklenburg Board of Education 
David J. Dew v, Charlotte-Mecklenburg Board of Education 
Deborah F, Brogden v. State Board of Education 
C. Kenneth Wamngton v. Edgecombe County Schools 
Edward Lawrence Momll & Paula Marie Momll v. Board of Directors 

Raleigh Charter High School 
Beverlv Simon Hamilton v Union Countv Board of Education 



CASE 




DATE OF 


PUBLISHED DECISION 


NUMBER 


AU 


DECISION 


REGISTER CITATION 


99 DOJ 0099 


Momson 


10/12/99 




99DOJ0101 


Owens 


07/30/99 




99 DOJ 0262 


Wade 


05/25/99 




99 DOJ 0488 


Momson 


05/24/99 




99 DOJ 0491 


Momson 


05/24/99 




99 DOJ 0492 


Owens 


07/19/99 




99 DOJ 0493 


Morrison 


05/24/99 




99 DOJ 0494 


Morrison 


05/25/99 




99 DOJ 0496 


Morrison 


05/25/99 




99 DOJ 0526 


Morrison 


10/25/99 




99 DOJ 0527 


Momson 


06/08/99 




99 DOJ 0528 


Phipps 


08/17/99 




99 DOJ 0529 


Grav 


1 1/29/99 




99 DOJ 0714 


Chess 


12/08/99 




99 DOJ 1018 


Morrison 


09/21/99 




99 DOJ 1019 


Gray 


11/10/99 




99 DOJ 1020 


Gray 


11/10/99 




99 DOJ 1121 


Chess 


12/08/99 




99 DOJ 1122 


Wade 


01/07/00 




99 DOJ 1123 


Gray 


11/10/99 




99 DOJ 1290 


Morrison 


12/07/99 




99 DOJ 1291 


Morrison 


12/09/99 




99 DOJ 1293 


Momson 


12/09/99 




99 DOJ 1294 


Chess 


12/08/99 




99 DOJ 1296 


Momson 


12/03/99 




99 DOJ 1297 


Chess 


12/08/99 




99 DOJ 1300 


Wade 


01/07/00 




99 DOJ 1301 


Momson 


12/03/99 




99 DOJ 1302 


Momson 


12/03/99 




99 DOJ 1303 


Morrison 


12/03/99 




99 DOJ 1305 


Morrison 


12/03/99 




99 DOJ 1417 


Morrison 


11/29/99 




98 EDC 0001 


Chess 


09/21/994 




98EDC 1124 


Mann 


06/11/99 




98 EDC 1205 


Gray 


09/24/99 




98 EDC 1649 


Mann 


06/04/99 




98 EDC 1796 


Owens 


07/13/99 


14:07 NCR 565 


99 EDC 0291 


Mann 


09/07/99 




99 EDC 0390 


Gray 


12/16/99 




99 EDC 0498 


Gray 


12/13/99 




99 EDC 0734 


Reil'ly 


10/05/99 




99 EDC 0955 


Reilly 


09/29/99 




99 EDC 1080 


Chess 


01/11/00 





99 EDC 1280 



Grav 



02/01/00 



STATE PERSONNEL 



Department of Administration 

Bernard A. Brown \ Department of Administration 

Department of Agriculture 

H.C. Troxler, Jr v. Dept. of Agnculture and Consumer Services 

Community Colleges 

Thomas Michael Chamberlin v Department of Community Colleges 

Correction 

E Wavne Irvin v. Department of Correction 

Pershield DeLoatch v Department of Conection 

Deborah Simth v Department of Correction 

Maydean L. Taylor v , Department of Conection 

Ann McMillian v Momson Youth Institution, Department of Correction 

Edward Alan Roper v, DOC, Div. of Pnsons, Western Youth Institute 

Shirlev Sellars v. Department of Conection 

Sean R. Dillard v Dept of Correction, Pasquotank Correctional inst. 

DeCarlos Stanley v. Department of Conection 

Steve A Matthews v Department of Cortection 



99 OSP 1025 


Wade 


99 OSP 0659 


Chess 


99 OSP 0286 


Phipps 


94 OSP 1791 


Momson 


98 OSP 1026 


Grav 


98 OSP 1126 


Chess 


98 OSP 1272 


Chess 


98 OSP 1275 


Chess 


98 OSP 1644 


Grav 


98 OSP 1788'° 


Grav 


98 OSP 1800 


Grav 


99 OSP 0027 


Momson 


99 OSP 0162 


Momson 



01/14/00 



07/27/99 



06/25/99 



05/18/99 
08/11/99 
06/22/99 
05/14/99 
05/12/99 
08/1 1/99 
09/30/99 
08/26/99 
06/22/99 
08/20/99 



14:01 NCR 60 



1583 



NORTH CAROLINA REGISTER 



March I, 2000 



14:17 



CONTESTED CASE DECISIONS 



AGENCY 

Patrick Smith v. Department of Correction 

Harry E. Kenan v. Capt. B.F. Lewis, Polk Youth Institution 

Robert Russell, Jr. v. Jeff Jones, Div of Community Corrections 

Judith Caves v. Department of Correction 

Shirley Sellars v. Department of Correction 

Richmond Fulmore v Department of Correction, Wake Correctional 

Henry C. Parks v. DART/ Admin., Aim Shea, Edward McCall, Thomas 

G. Ivester 
Jerry D Crawford v Department of Correction 99 OSP 0577 
Walter L Whitaker v Capt. Ricky Johnson, Pasquotank Corr. Inst. 
Angelo Alfonzo Smith v. Department of Correction 
Charles Creegan v Department of Correction 
Kathi P Brown v NC Correctional Institute for Women 
David J. Dermis v. Department of Corrections, Polk Youth Institution 
Tara King v. Department of Corrections 
Joyce Ann Bullock v Polk Youth Institution 
Timothy Ramey v. Department of Correction 
Curtis Lee Tucker v. Dept. of Correction - Caledonia 
Heather Williams v. Department of Correction 
Edward E. Hodge v. Department of Correction 
Russell S. Jackson v. Department of Correction, Albemarle 

Correctional Inst./Michael York 
Valee Taylor v. Department of Correction 

Sharon Tucker v. Ms. LaVee Hainer, DOC, Gen. Counsel to the Secretary 
Jan C. Smith v. Department of Correction, Dart Cherry Program 

Crime Control and Public Safety 

Thomas Michael Chamberlin v. DCCPS, Center for Missing Persons 

North Carolina School for the Deaf 
Steve Crawford v. North Carolina School for the Deaf 
Danny Wilson Carson v. North Carolina School for the Deaf 
Eric Arden Hurley v. North Carohna School for the Deaf 

Employment Security Commission 

Russell J. Suga v. Employment Security Commission 

Environment and Natural Resources 

L. Clifton Carroll v. Dept of Natural Resources, Div of Parks and 

Recreation 
Larry A Campbell v. NC WildUfe Resources Commission 
Pathe Vivek v. Department of Environment & Natural Resources 

Health and Human Services 

Debbie L. Whitley v. Wake County Department of Social Services 

Vera Crenshaw v. DHHS. Julian F Keith Ale. & Drug Abuse Trtmt. Ctr. 

Ivey G. Rhodes v Pitt County Mental Health Center 

Odessa D Gwynn v. Caswell County Health Department 

Doris Virginia Wearing v. Durham County Health Department 

I eon Kea v DHR, O'Berry Center 

Julia A. Cameron v. John Umstead Hospital, Health & Human Services 

Danny Jacob v. Onslow County Board of Health 

Jency Abrams v Department of Health & Human Services 

Lisa Adams-Houghton v. Rockingham Co. Dept of Social Services 

Timothy Truzy v. Department of Health & Human Services 

Carlos D, Burks, Sr. v. North Carolina Special Care Center 

Doima Pittman v. Department of Health & Human Services 

Bryan Benson v. Durham Cty Area MH/DD/SAS Program 

Shirley C Jones v. Department of Health & Human Services 

James Michael Duim v Pitt Co Mental Health, Developmental 

Disabilities, and Substance Abuse Area Program 
Odell Hudson v. Health & Human Svcs., Dorothea Di.\ Hospital 
Erica Joynes v. Durham County Department of Social Services 
Thomas Michael Chamberlin v Off. of Juvenile Justice, Juvenile 

Semces Division, 14"* Distnct Court Division 
Cheryl Highsmith v DHHS. Youth Svcs , New Hanover Reg. Juvenile 

Detention Center 
Carolyn A. Carter v. Cleveland Count)' Dept of Social Services 
Veda B Gill v Durham County Department of Social Services 
Alan J, Henick v Rutherford-Polk MH/DD/SAS 
Edna W Childs v Gaston-Lincoln Area Mental Health Program 
/\nthony Ratcliff v. Department of Health & Human Services 



CASE 




DATE OF 


PUBLISHED DECISION 


NUMBER 


AU 


DECISION 


REGISTER CITATION 


99 OSP 0163 


Morrison 


10/14/99 




99 OSP 0257 


Phipps 


06/07/99 




99 OSP 0258 


Lassiter 


09/29/99 




99 OSP 0338 


Phipps 


09/29/99 


14:11 NCR 945 


99 OSP 0386'° 


Gray 


09/30/99 




99 OSP 0416 


Maim 


06/04/99 




99 OSP 0512 


Morrison 


09/22/99 




Reilly 


06/02/99 






99 OSP 0644 


Gray 


10/12/99 




99 OSP 0675 


Gray 


11/04/99 




99 OSP 0765 


Reil'ly 


08/03/99 




99 OSP 0914 


Chess 


12/10/99 




99 OSP 0918 


Chess 


10/12/99 




99 OSP 0930 


Chess 


1 1/08/99 




99 OSP 1065 


Wade 


11/15/99 




99 OSP 1085 


Chess 


1 1/22/99 




99 OSP 1097 


Wade 


12/06/99 




99 OSP 1163 


ReiUy 


12/13/99 




99 OSP 1224 


Lassiter 


01/03/00 




99 OSP 1236 


Morrison 


12/22/99 




99 OSP 1256 


Lassiter 


01/05/00 




99 OSP 1519 


Gray 


01/10/00 




99 OSP 1647 


Gray 


01/21/00 




99 OSP 0596*" 


Gray 


08/16/99 




99 OSP 0640 


Lassiter 


10/18/99 




99 OSP 0641 


Lassiter 


10/18/99 




99 OSP 0087 


Reilly 


06/24/99 




96 OSP 1122 


Reilly 


05/26/99 




98 OSP 0914 


Gray 


10/22/99 


14:12 NCR 1082 


99 OSP 0050 


Morrison 


11/10/99 


14:12 NCR 1086 


99 OSP 0956 


Chess 


10/06/99 




97 OSP 0722 


Phipps 


09/27/99 




98 OSP 0456 


Gray 


08/05/99 




98 OSP 0924 


Phipps 


07/09/99 




98 OSP 1299 


Gray 


08/25/99 




98 OSP 1432 


Reilly 


06/18/99 




98 OSP 1733 


Morrison 


12/22/99 




99 OSP 0053 


Momson 


06/22/99 




99 OSP 0129 


Gray 


10/12/99 


14:11 NCR 936 


99 OSP 0147 


Owens 


08/1 1/99 




99 OSP 0278 


Gray 


11/04/99 




99 OSP 03 16 


Gray 


10/22/99 




99 OSP 0325 


Owens 


08/25/99 




99 OSP 0444 


Monson 


12/15/99 




99 OSP 05 16 


Gray 


08/31/99 




99 OSP 0533 


Marm 


09/24/99 




99 OSP 0549 


Gray 


12/21/99 




99 OSP 0609 


Gray 


07/07/99 




99 OSP 0671 


Gray 


07/13/99 




99 OSP 0673*" 


Gray 


08/16/99 




99 OSP 0763 


Owens 


09/03/99 




99 OSP 1055 


Gray 


11/29/99 




99 OSP 1090 


Momson 


1 1/09/99 




99 OSP 1357 


Chess 


01/21/00 




99 OSP 1454 


Morrison 


12/29/99 




99 OSP 1483 


Phipps 


09/22/99 





Johnston County 



14:17 



NORTH CAROLINA REGISTER 



March 1, 2000 



1584 



CONTESTED CASE DECISIONS 



AGENCY 

Lili Romaine Lee v Count> of Johnston 

Justice 

Thomas Michael Chamberlin v. Justice, Justice Academy 

Labor 

Robert C Adams v. Department of Labor 

Department of Public Instruction 

Billy McEachem v. Schools of Robeson County 
John Lee Herbin V- Smarkand Manor Training School 
Lmda D Chapman v. Lenoir Coimty Public Schools 

State Auditor 

Antonio Allen Bolton v. Office of the N C State Auditor 

Transportation 

Michelle Maloney Wilkins v Department of Transportation 

Judy S. GnndstafTv, Department of Transportation 

Charles W- McAdams v, Dept, of Transportation, Div/Motor Vehicles 

Larry R Lane v Department of Transportation 99 OSP 0105 

Ronald Roberson %■ Dept, of Transportation, Right-of-Way Branch 

Shehia Da\is v. Department of Transportation 

Carmalita Darnels v. Department of Transportation 

Paul N. Harris \', Dept. of Transportation, Div of Motor Vehicles 

Carolyn Campell v, Dept of Transportation 

University of North Carolina 

Wanda Troxler \ A & T State Uni\ersity and Dr. Ray J Davis 
Vivian Smith Hammiel, Ling-Chih C. Hsu and Joel A. Williams v. East 

Carolina Umversity 
Vivian Smith Hammiel, Ling-Chih C. Hsu and Joel A. Williams v. East 

Carolina Umversity 
Vivian Smith Hammiel, Ling-Chih C Hsu and Joel A Williams v. East 

Carolina University 
Jackie S. Flowers v East Carolina Umversity 
James A. Benton v. University of North Carolina at Charlotte 
Tracey L- Wilson v. North Carohna Central University 
Rex A. Coughenour v Univ ersity of North Carolina at Chapel Hill 
Anna Amta Huff \, Dr. Loiuue Sharpe/Dr Reza Salaim-Coll /Engineenng 
Rex A. Coughenour v. University of North Carolina at Chapel Hill 
Thomas Michael Chamberlin v. UNC a Chapel Hill, Dept. of Umversity 

Housing. Division of Student Affairs 
Halycon Tudie Blake \ Umversity of North Carolina at Chapel Hill 
Bndgette R. Booker \ . Winston-Salem State Umversity 
Rex A. Coughenour % University of North Carolina at Chapel Hill 
Temperance T. Tobe v. North Carolina Central University 
Phyllis Martin v. NC A & T State Umversity 
James W. Murrell v Umversity of North Carolina at Chapel Hill 
Harold Richardson v University of North Carolina at Charlotte 
Albcrtina Thompson v. Chancellor James Renick of NC A & T Univ. 

DEPARTMENT OF LABOR 

Bellacino's v Department of l^bor 

DEPARTMENT OF TRANSPORTATION 

Peter Kay , Stem v. Department of Transportation 

UNIVERSITY OF NORTH CAROLINA 

Stephame A. PavTie \ UNC Hospitals 
Barbara A. Russell v. UNC Hospitals 
Robin Perkins Stephens v . UNC Hospitals 
Rita Jo Kincaid v UNC Hospitals 
Rita Jo Kincaid v UNC Hospitals 
Edna Heath v. UNC Hospitals 
Clinton E. Taylor, Sr , v. UNC Hospitals 



CASE 




DATE OF 


PUBLISHED DECISION 


NUMBER 


ALJ 


DECISION 


REGISTER CITATION 


99 OSP 0456 


Morrison 


06/02/99 




99 OSP 0308 


Phipps 


06/11/99 




99 OSP 0667 


Gray 


07/28/99 




99 OSP 0189 


Wade 


09/04/99 




99 OSP 0273 


Gray 


08/04/99 




99 OSP 0691 


Reil'ly 


08/16/99 




99 OSP 0979 


Wade 


1 1/22/99 




98 OSP 0836 


Morrison 


05/20/99 




98 OSP 1028 


Gray 


09/30/99 




99 OSP 0034 


Mann 


06/23/99 




Mann 


06/1 1/99 






99 OSP 0142 


Momson 


06/08/99 




99 OSP 01 56 


Owens 


06/23/99 




99 OSP 0264 


Gray 


08/20/99 




99 OSP 0625 


Gray 


12/02/99 


14: 14 NCR 1336 


99 OSP 0739 


Reil'ly 


12/03/99 


14:14 NCR 1339 


97 OSP 0819 


Phipps 


08/02/99 




97 OSP 1268* = 


Phipps 


07/06/99 




97 OSP 1269*= 


Phipps 


07/06/99 




97 OSP 1270*= 


Phipps 


07/06/99 




98 OSP 1618 


Reilly 


06/24/99 




99 OSP 0047 


Wade 


10/08/99 




99 OSP 0388 


Chess 


12/06/99 




99 OSP 0517*' 


Reilly 


08/27/99 




99 OSP 0599 


Chess 


07/16/99 




99 OSP 0623*° 


Reilly 


08/27/99 




99 OSP 0674*' 


Gray 


08/16/99 




99 OSP 0686 


Gray 


07/08/99 




99 OSP 0731 


Chess ■ 


09/03/99 




99 OSP 0830*' 


Reilly 


08/27/99 




99 OSP 0865 


Chess 


08/24/99 




99 OSP 1030 


Lassiter 


01/04/00 




99 OSP 1 102 


Momson 


1 1/29/99 




99 OSP 1208 


Wade 


11/15/99 




99 OSP 1578 


Gray 


12/17/99 




99DOL 1216 


Reilly 


12/14/99 




99 DOT 0668 


Owens 


07/29/99 




99 UNC 0375 


Morrison 


06/21/99 




99 UNC 0540 


Gray 


08/11/99 




99 UNC 0563 


Owens 


07/21/99 




99 UNC 0746*' 


ReiUy 


08/09/99 




99 UNC 0747*- 


Reilly 


08/09/99 




99 UNC 0943 


Chess 


10/15/99 




99 UNC 1117 


Momson 


12/22/99 





1585 



NORTH CAROLINA REGISTER 



March I, 2000 



14:17 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 



COUNTY OF NEW HANOVER 



IN THE OFFICE OF 
ADMINISTRATIVE HEARINGS 

99 EHR 0770 



DALLAS HARRIS REAL ESTATE CONSTRUCTION, INC. 

Petitioner, 



NORTH CAROLINA DEPARTMENT OF ENVIRONMENT 
AND NATURAL RESOURCES, DIVISION OF WATER 
QUALITY, 

Respondent. 



RECOMMENDED DECISION 



On November 10,1 999, Administrative Law Judge Melissa Owens Lassiter heard this contested case in Wrightsville Beach, 
North Carolina. In June 1999, Petitioner timely filed a Petition for Contested Case Hearing appealing Respondent's assessment of 
a civil penalty for a numeric water quality violation. On or about December 1 3, 1999, Petitioner and Respondent filed their respective 
proposed Recommended Decisions. 



For Petitioner: 



For Respondent: 



APPEARANCES 

I. Clark Wright, Jr., 
Ward & Smith, PA 
P.O. Box 687 
New Bern, NC 28563 

Brian J. McGinn 
Assistant Attorney General 
N.C. Department of Justice 
P.O. Box 629 
Raleigh, NC 27602 

ISSUES 

1. Whether the Petitioner violated the provisions of 15A NCAC 2B .0220(3)(I) on January 9, 1999, by causing the 
turbidity in the headwaters of Howe Creek to exceed the 25 NTU water quality standard? 

2. Whether the Respondent, in assessing a civil penalty against Petitioner, exceeded its authority or jurisdiction, acted 
erroneously, failed to use proper procedure, acted arbitrarily or capaciously, or failed to act as required by law or rule? 

BURDEN OF PROOF 

Respondent bears the initial burden of establishing each essential element needed to support its civil penalty assessment. 
If Respondent meets this initial burden. Petitioner then has the burden of proving, by a preponderance of the evidence, that 
Respondent's civil penalty assessment action violated one or more of the tests set forth at N.C. Gen. Stat. § 150B-23(a)( 1 -5). 

EXHIBITS 

The following Petitioner's Exhibits were admitted into evidence: 

P 1 September 21,1 999 Map of Ditch Location and Environs for a Portion of Covil Estates 

P2 January 15, 1999 Photos of Covil Estates and surrounding property 

P3 Ledger of Photos in P2 

The following Respondent's Exhibits were received into evidence: 



14:17 



NORTH CAROLINA REGISTER 



March 1, 2000 



1586 



CONTESTED CASE DECISIONS 



Rl April 23, 1999 Civil Penalty Assessment for Violations of 15A NCAC 2B.0220(3)(1) 

R2-R5 Photographs of site, dated January 1 1, 1999. 

R6 Report of Analysis of Turbidity Samples by Environmental Chemists, Inc., dated January 9, 1999. 

R7 January 14, 1999 Notice of Violation and Recommendation of Enforcement for Dallas Harris Construction, Covil 

Estates III. 

R8 February 10,1 999 Enforcement Report prepared by Rick Shiver and sent to Colleen Sullins for Dallas Harris Real 

Estate and Construction, Covil Estates III. 

R9 December 8, 1999 Ditching and Erosion Control Plan of Covil Estates, III. 

FINDINGS OF FACT 
1. STIPULATED FACTS 

1. On April 23, 1999, Kerr T. Stephens, the Director of the Division of Water Quality (DWQ) of the Department of 
Environment and Natural Resources (DENR), acting pursuant to a delegation of authority from the Secretary of DENR, assessed a 
civil penalty of $2925.46 against Petitioner. 

2. The penalty was assessed for an alleged violation of 15A NCAC 2B .0220(3)(1) occurring on January 9, 1999 at 
a site known as Covil Estates III. The Director assessed $2250.00 for the violation and $675.46 for enforcement costs incurredby 
the Department. 

3. As required by G.S. § 143-215. 6(c), in determiningtheamoimtofthepenalty, the Directorconsideredthe factors 
hstedinG.S. § 143B-282.1(b). 

4. The Director relied upon information and evidence provided to him by personnel of Respondent's Wilmington 
Regional office when considering these statutory factors and deciding to issue a civil penalty in the amount of $2925.46. 

5. The civil penalty assessment document was received by the Petitioner on May 28, 1999. Thedocument is attached 
and marked as Respondent's Exhibit # 1 . Both parties stipulate that the Director signed the document, that it is authentic andrelevant, 
and that it should be admitted into evidence. 

2. ADJUDICATED FACTS 

Based upon the official documents in the file, sworn testimony of the witnesses, and other competent and admissible 
evidence, the undersigned makes the following: 

a, BACKGROUND FACTS 

6. Petitioner is a North Carolina corporation doing business in New Hanover County 

that owns real property known as "A Portion of Covil Estates," or "Covil Estates III." This subject property is located just off 
Military Cutoff Road in Harnett Township, Wilmington, North Carolina. Petitioner plans to develop the subject property as a 
residential subdivision. (Petitioner's Exhibit 1) 

7. Carolina Builders owns the property situated to the west of Petitioner's property, between Petitioner's property 
and Military Cutoff Road. (Petitioner's Exhibit 1) 

8. Howe Creek is located downstream or southeast of Petitioner's property, and is classified SA waters having a 
supplemental classification of Outstanding Resource Waters (ORW). (Petitioner's Exhibit 1 ) The water quality standards for waters, 
such as Howe Creek, mandate that the turbidity in the receiving waters shall not exceed 25 Nephelometric Turbidity Units (NTU), 
and that if turbidity exceeds this level due to natural background conditions, the existing turbidity level cannot be increased 15A 
NCAC 2B.0220(3)(1). 

In other words, the numeric water quality standard for turbidity in Howe Creek is 25 NTUs. Under North Carolina law, the 
25 NTU standard for Howe Creek also applies to all headwaters and unnamed tributaries emptying into Howe Creek, including those 



1587 NORTH CAROLINA REGISTER March 1,2000 14:17 



CONTESTED CASE DECISIONS 



portions directly adjacent to and downstream of the southern boundary ditch on Petitioner's Covil Estates property. 

9. Water flows south down a state-maintained ditch along Mihtary CutoffRoadandCarolinaBuilder'sproperty, south 
onto Carolina Builder's site, east onto Petitioner's property. The flowing water then combines with the water from another ditch on 
Petitioner's property to flow through the Petitioner's property, and then into Howe Creek. (Petitioner's Exhibit 1) 

10. On May 19,1 998, New Hanover County issued Petitioner a Grading Permit GP 3 1 -98 for construction of wetland 
drainage ditches wi thin the Covil Estates III property The permit required Petitioner to comply with the terms of an approved 
sedimentation and erosion control plan, and the County's Soil Erosion and Sedimentation Control ordinance. 

1 1 . The County's Erosion Control staff approved Petitioner's sedimentation and erosion control plans which required 
Petitioner implement the following Best Management Practices (BMPs); 5 stone check dams must be installed on the property, 
ditches must have side slopes of 2; 1, and those control measures must be maintained during the development of the subject property. 
The plan also required Petitioner to reslope an older ditch system with 2: 1 side slopes. This ditch system is located along the power 
line on the southern boundary of Petitioner's property, (hereinafter "southern boundary ditch"). 

12. Petitioner installed 1 1 check dams in the ditches on its property; six more than required under Petitioner's 
approved sedimentation and erosion control plan. 

JANUARY 9. 1999 ALLEGED VIOLATION 

13. During the night of January 8, 1999, and the morning of January 9, 1999, it rained in the subject area of 
Wilmington, NC. 

14. On Saturday, January 9, 1999, Respondent's DWQ staff received a complaint of excessive turbidity in the 
headwaters of Howe Creek, downstream from Petitioner's Covil Estates property. 

1 5 . That morning, in response to the above-referenced complaint. Rick Shiver, the Water Quality Regional Supervisor 
for DENR's Wilmington Regional Office, and Mike WiUiams of the Wilmington Regional Office, inspected the Petitioner's property. 

16. During their inspection, Mr. Shiver and Mr. Williams first observed that the headwaters of Howe Creek, 
downstream from Petitioner's property, "looked turbid." Next, they observed brown and muddy or turbid water flowing from a 
drainage ditch at the end of Snug Harbor Drive on Petitioner's property, through Petitioner's property, and into the headwaters of 
Howe Creek. (See Petitioner's Exhibit 1). 

17. Mr. Wilhams and Mr. Shiver did not see any problems in the ditches located on and beside Prospect Cemetery, 
a property located north/northwest of Petitioner's property. (See Petitioner's Exhibit 1). 

18. Wilhams and Shiver did not walk onto Carolina Builders' property as they were "No Trespassing" signs posted on 
that property. However, they did not observe what they thought were water quality violations in that area. 

19. Wilhams and Shiver did not see any other discharge into area they inspected other than on Petitioner's property. 

20. WiUiams has a number of years of experience in collecting turbidity samples and using field turbidity meters. 

21. During the January 9, 1999 inspection, Mr. Williams took field turbidity measurements using a portable turbidity 
meter, and collected water samples at three different locations of the southern boundary ditch on Petitioner's property Station #1 
was located in the ditch at the north end of Snug Harbor Drive. The field turbidity readings at Station #1 were 79.2 NTU. Station 
#2 was located in the ditch at the lower end of Petitioner's property, and beneath CP&L's power line/ right-of way at L ongboatDrive. 
The field turbidity readings at Station #2 were 196.1 NTU. Station #3 was located downstream from Petitioner's property in the 
headwaters of Howe Creek. The turbidity readings at Station #3 were 166.5 NTU. (Three sampling locations depicted on 
Respondent's Exhibit 1). 

22. After collecting the samples, Mr. Wilhams transported them to Environmental Chemists, Inc. for laboratory 
analysis. 

23. On January 12,1 999, Ms. Crystal Milhs, an Environmental Chemists, Inc. technidan, conducted two tests for each 



14:17 NORTH CAROLINA REGISTER March 1, 2000 1588 



CONTESTED CASE DECISIONS 



sample. The laboratory analysis tests indicated turbidity readings of 69.8 and 70 NTU at Station #1; 130 and 130 NTU at Station 
#2; and 103 and 108 NTU at Station #3. 

24. Significant errors can occur using field turbidity meters and analyzing laboratory samples, inctiding but not limited 
to: (a) dirty containers; (b) excessive agitation causing air bubbles; (c) failure to properly calibrate; (d) improper or inad\ertent 
collection of bottom sediments in the sample; and/or (e) failure to mix samples properly. 

25. However, Petitioner did not introduceany specific factual evidence proving the field measurements and lab samples 
at issue were subject to any of these errors. 

26. On January 9, 1999, the actual tiu"bidity levels present in the waters at the locations measured and sampled by 
Respondent exceeded the applicable 25 NTU standard at all three sampled locations. 

27. On January 9, 1999, Williams and Shiver also observed inadequate sedimentation and erosion control measures 
on Petitioner's property. Some ditches on Petitioner's property, including the southern boundary ditch, were not fully vegetated or 
stabilized, had some localized slope failures and some check-dam structures were "blown out." Specifically, there was severe erosion 
on the vertical walls of the southern boundary ditch, and sedimentation located on the bottom ofthe southern boundary ditch. (See 
Respondent's Exhibits 2-5, photos depicting observations) Based upon these observations and the field measurements. Shiver opined 
that Petitioner was not in compliance with an erosion and sedimentation measures, and needed to determine if they had an erosicn 
control plan and if county considered them to be in comphance with such plan. 

28. Shiver called Beth Easley of the New Hanover County Erosion and Sedimentation Program to determine if 
Petitioner had a plan and if they were in compliance. 

29. On January 12, 1999, Beth Easley, employees from DWQ, and the Army Corp of Engineers inspected Petitioner's 
property to determine whether BMPs were in place. Ms. Easley verified that Petitioner had a Sedimentation Control Plan, and did 
not comply with the erosion and sedimentation plan requirements. 

Specifically, some ditches, including the southern boundary ditch, were improperly sloped at approximately 1:1, instead of 
the required 2: 1 slope; temporary sediment traps were improperly constructed; and four or five stone check dams were "blown out;" 
that is, the stones were knocked out ofthe dam, so the dam could not filter sedimentation fi-om the flowing water. 

30. Easley opined that because Petitioner's ditches were not properly sloped or stabilized, the sides ofthe ditches were 
eroding iuto the water. 

31. On January 12, 1999, Easley did not see "much water" flowing fi^om the upstream Carolina Builder's property onto 
the Petitioner's property. 

32. While four or five stone check dams were "blown out," approximately six or seven stone check dams were in place 
on Petitioner's property on January 9, 1999. Only one ofthe five "required" stone check dams was "blown out." 

33. On January 12, 1999, the County Erosion Control Program issued Petitioner a Notice of Violation of Land - 
Disturbing Activity because Petitioner's Best Management Practices (BMP) were not in comphance; that is. Petitioner failed to 
properly slope the ditches, failed to construct sediment traps according to the plan, and failed to maintain said erosion control 
measures. 

34. Based upon the County's findings and his own observations, Mr. Shiver issued Petitioner a Notice of Violation and 
Recommendation of Enforcement on January 14, 1999 The Notice informed Petitioner that they had "determined that stream 
standards for turbidity were contravened in the headwaters of Howe Creek fi-om wetland drainage ditches from a 28.38 tract of land 
being developed at Covil Estates III." 

The Notice also referenced the County's findings regarding severeerosion and noncompliance with its erosion control plan. 
Respondent advised Petitioner that "Both of these factors lead to the severe turbidity levels observed after the rainfall eventoccurring 
early on January 9, 1999 " Lastly, Respondent advised that it was preparing an enforcement action against Petitioner for stieam 
standard violations. (Respondent's Exhibit 7) 

35. In his April 23, 1999 civil penalty assessment. Director of DWQ Stevens concluded that "Petitioner violated I5A 
NCAC 2B .0220(3)(1) on January 9, 1999, by causing turbidity in Howe Creek to exceed the 25 NTU water quality standard. Such 



1589 NORTH CAROLINA REGISTER March 1,2000 14:17 



CONTESTED CASE DECISIONS 



Conclusion was based upon the findings that: 

(1) staff observed inadequate sedimentation and erosion control measures within 
the [Petitioner's] development. Turbid water was observed draining from the 
ditches into the headwaters of Howe Creek. 

(2) field and laboratory turbidity tests results that turbidity exceeded the 2 5 NTU 
stream standard in three different sampled locations, and 

(3) the Comity's confirming that Petitioner was not in compliance with its 
[erosion control plan outlined] in its permit, and the County's issuance of a 
Notice of Violation on that basis. 

36. Petitioner claims that the majority of the sedimentation and turbidity violations present at the site on January 9, 
1999, were caused by upstream properties. Petitioner introduced uncontradicted evidence that Petitioner's employee Alan King, 
personally observed milky/tannish-colored turbidity plumes enter the southern ditch of Petitioner's property from the Carolina 
Builder's property, and flow downstream through Petitioner's property and into the headwaters of Howe Creek. King observed this 
occurrence during and immediately after, at least two other rainfall events occurring at the Covil Estates property the week after 
January 9, 1999; specifically, on January 14 and 18, 1999. Such testimony is illustrated by Petitioner's Exhibits 9-16, which were 
taken by King or about January 18, 1999. 

37. As Petitioner's land development supervisor who also deals with environmental compliance issues. King was 
familiar with Petitioner's ditch system, and the water flow pattern on and surrounding Petitioner's property before and January 9, 
1999. 

38. County Erosion control agent Beth Easley verified that milky/tannish colored turbidity existed on, and was coming 
from Carolina Builders' property onto Petitioner's property, during and after a rainfall event on January 14, 1999. 

39. While contending that most of the sedimentation present in the wefland drainage ditch was caused by upstream 
properties, Mr. King also admitted, however, that some mud must have entered the southern boundary ditch from the Petitioner's 
property, that Petitioner's ditches were improperly sloped, and that some of stone check dams were not in compliance on January 
12, 1999. 

40. Neither Petirioner nor its agents were present at the property on January 9, 1999. As a result, Petitioner failed to 
introduce any eyewitness observations regarding the color of the flowing water, or whether the visible turbidity that entered the 
relevant southern boundary ditch and headwaters of Howe Creek was contributed by or caused by upstream sources on January 9, 
1999. 

4 1 . Conversely, Respondent presented eyewitness testimony of the site conditions and scientific evidence of the water 
quality violations as they existed on January 9, 1999 Respondent's uncontradicted evidence established that, as of January 9, 1999, 
Petitioner was not in full compliance with all aspects of Petitioner's approved sedimentation and erosion control plan, such assome 
localized slope failures, the failure of several check dams, and the lack of fully established vegetation. 

42. Based upon their knowledge and experience. Respondent's agents opinedthat were not aware that Respondent has 
ever imposed a civil penalty for a numeric water quality standard violation based solely upon a numeric test result establishirg the 
violation. 

43. There was insufficient evidence presented that the high levels of turbidity of Howe Creek was due to any natural 
background levels. 

CONCLUSIONS OF LAW 

Based on the foregoing Findings of Fact, the undersigned concludes the following: 

1 . This matter is properly before the Office of Administrative Hearings, and the Office has jurisdiction over the subject 
matter and the parties herein. 

2. All parties are correctly identified and designated, and there is no question of joinder or misjoinder. 



14:17 NORTH CAROLINA REGISTER March 1,2000 1590 



CONTESTED CASE DECISIONS 



3. Pursuant to N.C. Gen. Stat. §143-215. 6A(a)(l), the Respondent may assess a civil penalty of not more than ten 
thousand dollars per day against any person who violates any classification, standard, limitation, or management practice established 
pursuant to N.C. Gen. Stat. §§143-214.1, 143-214.2 or 143-215, 

4. Pursuant to N.C. Gen. Stat. §143-215. 3(a)(9) and N.C. Gen. Stat. §1438-282. 1(b)(8), the State mayassess 
Petitioner for its enforcement costs in this matter. 

5. The Director of DWQ, pursuant to delegation provided by the Secretary of DENR, has the authority to assess civil 
penalties in this matter. 

6. As required by G.S. §143-215.6A(c), in determining the amount of the penalty, the Director properly considered 
the factors hsted in G.S. §143B-282.1(b). 

7. 15A NCAC .0220(3)(1) requires that the turbidity in the receiving water (such as Howe Creek) shall not exceed 
25 NTU, and that if the turbidity exceeds this level due to natural background conditions, the existing turbidity level cannot be 
increased. 

8. On January 9, 1999, the water quahty standard mandated by 15ANCAC .0220 (3)(1) was violated in the headwaters 
of Howe Creek as the turbidity in such waters exceeded 25 NTU standard. 

9. The high levels of turbidity in the headwaters of Howe Creek as measured by on January 9, 1999 were not due to 
natural background levels within the meaning of 15A NCAC 2B .0220(3)(1). 

10. Some of Petitioner's evidence shows it was possible that upstream sources, such as the Carolina Builders' property, 
may have caused or contributed to part of the excessive turbidity in the headwaters of Howe Creek on January 9, 1999. 

11. A preponderance of the evidence of ( 1 ) Respondent's agents' eyewitness observations of the subject site on January 
9, 1999, (2) the laboratory turbidity test resuhs, (3) Petitioner's failure to properly slope its ditches, failure to properly construct 
temporary sediment dams, and failure to maintain its ditches and BMPs, and (4) the County's Notice of Violation for the 
aforementioned violations, outweighs Petitioner's evidence about the possibility of upstream turbidity sources causing the subject 
violation. 

12. The numeric lab results by Environmental Chemists, Inc. are consistent with Respondent's eyewitness testimony 
that mud entered the waters of the ditch from Petitioner's property. The increased turbidity readings irom Station #1 (located at the 
middle of the property) to Station #2 (located at the bottom end of the property) indicate that alarge amount of sediment entered the 
water as the water ran through the ditch on Petitioner's property. The decreased NTU readings at Station #3 (located below the 
property in the headwaters of Howe Creek) indicate that less sediment was being added once the water left Petitioner's property. 
Therefore, the sediment entering the water on Petitioner's property caused turbidity readings in the headwaters of Howe Creek to 
exceed the 25 NTU stream standard. 

13. OnJanuary9, 1999, Petitioner violated 15ANCAC2B .0220(3)(1) by causing the turbidity in Howe Creek to exceed 
the 25 NTU water quality standard. 

14. In assessing a civil penalty against Petitioner, the Respondent did not exceed its authority or jurisdiction, act 
erroneously, fail to use proper procedure, act arbitrarily or capriciously, or fail to act as required by law or rule. 

RECOMMENDATION 

Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned recommends that the Director of 
Division of Water Quality's decision to penalize the Petitioner $2,925.46 for violating 15A NCAC 2B .0220(3)(1) be AFFIRMED. 

NOTICE 

The Environmental Management Commission will make the Final Decision in this contested case. N.C. Gen. Stat. § 
1 50B-36(a) requires such Commission to give each party an opportunity to file exceptions to this Recommended Decision and to 
present written arguments to those in this agency who will make the final decision. 



1591 NORTH CAROLINA REGISTER March 1,2000 14:17 



CONTESTED CASE DECISIONS 



N.C. Gen. Stat. § 150B-36(b) requires this Commission to serve a copy of the Final Decision on all parties and to furnish 
a copy to the parties' attorneys of record and to the Office of Administrative Hearings. 



This the 31^ day of January, 2000. 



Melissa Owens Lassiter 
Administrative Law Judge 



14:17 NORTH CAROLINA REGISTER March 1,2000 1592 



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